Criminal Justice Bill

Public Bill Committee, 11 February 2003.

Standing Committee B

Clause 204 - Meaning of ''specified offence'' etc.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I beg to move amendment No. 893, in

clause 204, page 114, line 8, leave out 'a specified offence' and insert

'of a serious sexual or violent nature'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following amendments:

No. 894, in

clause 204, page 114, line 8, at end insert—

'( ) it is of a serious sexual or violent nature, and'.

No. 895, in

clause 204, page 114, leave out line 14.

No. 900, in

clause 209, page 117, line 24, leave out 'relevant' and insert 'serious'.

No. 902, in

clause 209, page 117, line 33, leave out subsection (4).

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

This is the first of the Committee's debates on chapter 5, which deals with dangerous offenders. This is an issue of significant public importance, and people have strong views about the best way to deal with dangerous offenders. I hope that, in the course of debates on amendments to clauses 204 to 216 and to schedule 11, which lists the offences, we will be able to probe the Government's thinking on the subject. We should have an honest debate about sentencing—about what works and what is good and effective both for defendants and for victims.

Amendment No. 893 would remove the phrase ''a specified offence'' that triggers the list of offences in the schedule, and replace it with a generic definition. Amendment No. 894 would do the same later in the clause. Amendment No. 895 would remove the line that states that the ''relevant offence'' has the meaning given in section 209(4). The result would be clearer and simpler definitions. Perhaps the most important change would be made by amendment No. 900, requiring that an offence be serious.

The intention is to debate what sort of offences should trigger the dangerous offender provisions, and to consider what thought has been given to the subject since the relatively recent amendments to the law made by the Powers of Criminal Courts (Sentencing) Act 2000. Section 109 of that Act deals with life sentences for serious second offences, and section 85 deals with sexual and violent offences and licences. It is not long since Parliament last considered the matter, but I shall suggest two or three points that we might wish to take into account when considering the definition.

I am content that serious offences are defined, and that they include violent offences and sexual offences. If those two categories are to be treated differently, however, we must explain why. Serious violent and sexual offences have always been defined as the two types of serious offence, but the pathway is different for the two categories, and we must explore the logic behind that.

The second fundamental question is whether it is appropriate to define serious sexual and violent offences by means of a list of offences, and we shall come to the relevant amendments later. The list is very long and includes offences such as assault, which the lay public would not, in the normal course of things, regard as a serious sexual or violent offence. Other offences, such as abandoning children, female circumcision and assault occasioning actual bodily harm, might be seen as forming an entirely different category, and it might not be thought appropriate for them to trigger the dangerous offence provisions by themselves. They may in part be the product of a disturbed mind, or they may be a relatively minor second offence. My proposition to the Minister is that we include the general definitions of serious violent and serious sexual offences, but leave it to the court to determine the consequences—they should not be triggered in advance by a list. The court can then deal with the range of extended sentence and extended supervision for which the Bill provides.

The third point—we will debate the detail later—is that subsequent clauses provide for the treatment of offenders under 18 to be subject to a similar set of arrangements to that for offenders over 18. However, there are strong grounds for saying that we should not include such automatic consequences. We should always assume that those who commit offences when they are under 18 will have the benefit of a review when they become adults. We should not presume that their adulthood will be shaped by the mistakes, offences, behaviour and characteristics of their youth. We should not condemn those who are convicted of serious offences as youngsters to the same length and inevitability of punishment as adults, who are much more responsible for themselves.

One or two other issues arise from the way in which we define serious offences. There is a real debate to be had about whether it is better to have a definite term of imprisonment, followed by an indefinite term of supervision, which may or may not be in custody, or to have an indefinite sentence at the beginning. I do not come to the issue with any theological view, although certainty is often better than uncertainty from the victim's point of view. In some ways, not knowing when someone will be released is a worse punishment than knowing the punishment. However, it is often impossible to predict someone's condition when the sentence is passed and come to a view about when it will be safe to release them into the community. Having taken advice over recent years, I have formed the view that it is better for such things to be determined by the court, rather than by people working in secret on bodies such as parole boards, no matter how good or well informed they are.

If a case is in the realm of serious violent or sexual offences and the evidential base at the time of sentencing shows that it is impossible to predict when someone will be safe to release into the community, the court has a duty to serve the public interest by ensuring that there not be an automatic release into the community. In such cases it might be better to say, ''We cannot at the moment say when it will be suitable to release this person. This is a very serious matter. They have been and are a risk to the community, and might still be a risk in five or 10 years' time. Therefore we shall judge whether it is appropriate to release them back to the community at that time by bringing the matter back to the court and having the court hear the evidence of those who have been dealing with that person's medical, mental and psychiatric condition.'' That would effectively be to have what now happens at the Parole Board happening at court, so that the public can see that the decision is taken in an open and accountable way.

I do not disparage or undermine the work of the Parole Board—I am about to spend some time, at its invitation, sitting in on the process that it carries out of reviewing cases, to which I am looking forward very much. However, the Parole Board suffers from a disadvantage in that that process is not accountable in a full, public way. We should consider whether the process leading to the decision on whether someone is fit for release, made on the basis of the evidence of their behaviour in prison, of the results of their medical treatment and of their psychiatric and psychological assessments, should take place in open court. How we define which offences trigger the dangerous offenders provision gives rise to such issues. I accept that public protection requires that there be a category of offenders for whom the normal sentencing regime cannot apply. At the time of sentencing there should be additional provision for such offenders, and there should be protection at the end of that sentence. I am not satisfied that that happens at the moment in a way that commands public confidence. However, the legislation should not be over-prescriptive, and huge and uncertain sentences should not be given. Matters should proceed in the normal, accountable way through the courts, whether involving the original judge, or another judge sitting in the same court years later.

Hilary Benn (Labour, Leeds Central)

Good morning, Mr. Illsley.

The hon. Gentleman gave a helpful introduction to some of the issues raised by this chapter, which is designed to deal with those circumstances that we all experience currently. One of the responsibilities of my post is to write to my colleagues from time to time to notify them of the release of a dangerous offender—I used to receive such letters myself, and I now send them out. Although such offenders have come to the end of their determinate sentence, the consensus is that the risk that they present to the public remains. Therefore we try to construct licence conditions and supervision arrangements in order to maximise the

chances of protecting the public from that continuing dangerousness. As we know from certain cases, however, that does not always work. Victims and those with responsibility for oversight of the system find those cases in which someone who is in essence generally agreed to pose a risk, is released at the end of their sentence and then commits another offence, the most difficult to deal with. People legitimately ask why the system did not protect them from that individual. That is what these provisions are all about. They are based on the essential premise that decisions about release should be based on an assessment of risk—the risk presented to the public—in exactly the same way as a parole board currently assesses risk in relation to mandatory and discretionary life sentences.

The hon. Gentleman asked whether it might not be better to have a system of indefinite terms rather than definite terms followed by indefinite supervision. The Government believe that sentencing for public protection is the right approach because it ensures that individuals will not be released until an assessment of the risk that they present to the public has been made and until it has been decided that that risk is sufficiently reduced. Surely, from a victim's point of view, it is more comforting and reassuring—in so far as one can comfort and reassure victims of sexual or violent crimes—to know that the offender will not be released until they are assessed as no longer presenting a significant risk than to know that the offender will be released after a certain time but that they will then be subject to supervision arrangements, which, in truth, describes the current situation. We try as best we can to ensure that those supervision arrangements cover the dangers, but they do not always work, which is why certain provisions have been included in the Bill.

On the question of who is the best person to assess risk, parole boards have a considerable amount of experience in dealing with the problem. Their record on making difficult judgments and performance in getting them right have been improving and are continuing to improve, and the reconviction rate of those who have been released is now at a record low level. From memory, in the mid-1990s, the reconviction rate was about 7 per cent., whereas the rate is now down to a little more than 3 per cent., although parole boards are releasing a higher proportion of the cases that they consider.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I accept what the Minister says about the figures and, as I made clear, I do not undervalue the job of parole boards. Does he accept, however, that there is one inevitable disadvantage, which is that the process takes place behind closed doors with no apparent public accountability?

Hilary Benn (Labour, Leeds Central)

Yes, I accept that the process takes place in private. Of course, extensive information is placed before the board—

Humfrey Malins (Conservative, Woking)

It is confidential.

Hilary Benn (Labour, Leeds Central)

Indeed, that is the case. As the hon. Gentleman says, much of the information is confidential because it covers the circumstances of the person in question, as well as their history, possibly going back to their childhood. It would not be possible

to make all that information public, and in the absence of all the information, how could anyone make an assessment?

I recognise the difficulties and acknowledge the point made by the hon. Member for Southwark, North and Bermondsey (Simon Hughes) about transparency and public confidence. Sometimes, the public do not like it either way. Whether the board does or does not grant release, people assume that its decision was or was not fair on the basis of very limited knowledge about the offender's circumstances and history. However, for the reason just given by the hon. Member for Woking (Mr. Malins), it would not be possible to make such decisions in the public arena. On accountability in a wider sense, the board must satisfy the public that the systems work and that it is doing a more effective job—as demonstrated by the figures that I have cited—of balancing the absolute requirement to make an effective assessment of risk against the wish to allow those who have changed and whose risk has been reduced to show that they are capable of living in a different way and getting on with their lives.

I recognise that the amendments are probing. It is better to set out clearly, as the clauses and the schedules do, the offences that can be taken into account for the purposes of considering the application of the Bill. We prefer the clarity offered by the schedule. It will be clear which offences fall under the scheme and which do not. That is important as a matter of principle. I understand the intention of the hon. Member for Southwark, North and Bermondsey, but the difficulty with the wording of the amendment is that it requires us to define ''of a serious sexual or violent nature''.

My second reason for resisting the amendments is that we would not want to raise the threshold for the sentence of public protection to a higher level, as it is our intention that all offenders who have committed a sexual or violent offence carrying a maximum sentence of 10 years or more, and who have been assessed as dangerous, should, in the interests of public protection, receive the new sentence. It is important in debating whether it is important, as the Government believe, to list the offences in schedule 11 or to adopt the alternative approach advanced by the hon. Gentleman, to hold on to what it says in clause 205(1)(b)—the court has, in all cases, to be of the opinion, having regard to what the trigger offences are,

''that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.''

That is the protection. There is a trigger system that is clear about what is covered and the court must apply that test, the precise wording of which we shall debate shortly. The Government believe that the combination of the court's assessment of

''significant risk of serious harm''

and the schedule will give a framework on which we can make the provisions work.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I completely understand that it is not just a list, but a list plus criteria. It is right that there should be criteria. Does the Minister accept that there are two weaknesses in putting lists of offences in legislation? First, they rapidly become out of date and have to be amended and, secondly, they have the potential to be politicised—the political offence of the day, week or year can be added. It is a relatively cheap way of adapting the criminal justice system. If the criteria are always to apply, what is wrong with allowing the courts to determine whether a certain offence should qualify as a serious violent or sexual offence?

Hilary Benn (Labour, Leeds Central)

The difficulty is that different courts might interpret that in different ways, affecting the trigger. The hon. Gentleman's point about the transparency of the process reinforces the case for clarity, which schedule 11 provides. As we have learned during these debates, there is no guarantee that our successors will not change the offences and add to the list. The system will have to cope with that. All that we can do is to list the offences that we are aware of in order to try to cover all eventualities. There are also some technical deficiencies in the amendment, but I recognise that it was intended to be probing, and I hope that I have given the hon. Gentleman some reassurance.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am very grateful to the Minister. My amendment was a probing amendment. We must deal with 13 clauses between 9.10 am and 11.25 am, so to assist the Committee I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 683, in

clause 204, page 114, line 12, leave out 'ten' and insert '14'.

I can tell the Minister straight away that this is a probing amendment; unless the Opposition are seriously provoked, it is unlikely that we shall press it to a Division. The Minister is not in the habit of severely provoking us, so I think that this will be more of a probing morning.

I pause, Mr. Illsley, to tweak the Minister's arm a little. Unless I am grievously mistaken, the Government tabled more than 150 amendments to their own Bill on Thursday and Friday of last week. That was not especially helpful to those of us who read slowly. Moreover, I cannot help but feel that Parliaments nowadays tend to pass a law one year and change it the next, which is a pity. The Powers of Criminal Courts (Sentencing) Act 2000 was passed not very long ago, and changes to extended sentences were made two years ago. Now we are changing the law again. This Bill is an example of how we sometimes rush so fast that we find ourselves changing the law too soon.

The purpose of my amendment is to change subsection (2)(b)(ii) to make offences trigger offences under the schedule. We are dealing with dangerous offenders, so there are some important general issues. However, my amendment deals with a specific point. Under the Bill as drafted, an offence becomes a serious offence if it is a specified offence and if it carries a 10-year sentence. There are no fewer than 62 specified

violent offences in schedule 11, and 36 specified sexual offences. I have concerns over whether 10 years is an appropriate level to set because, under clause 205, if one commits a serious offence and the court thinks that

''there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences'',

the sentence becomes an indeterminate or life sentence.

The first principle is that that sentencing provision is draconian. It is tough, and I imagine that it would be used sparingly, and for limited offences. I propose that it would be more appropriate to raise the threshold slightly to make a serious offence one that is specified and that carries a sentence of 14 years rather than 10.

In schedule 11, some offences are caught by the 10-year rule. There are some that would not be caught by the 14-year rule, but some would be. However, many offences in the schedule do not carry a sentence of either 10 or 14 years. I had a look at one or two, and we shall debate them later. Interestingly, although a section 18 arrestable offence—grievous bodily harm with intent—carries a life sentence, the lower form, which is a section 20 offence, carries five years. Section 20 offences can sometimes be very serious. ABH carries a five-year sentence and arson carries life. However, what I found most interesting was the offence of threats to kill: it carries a maximum penalty of 10 years. If the amendment is accepted, a threat to kill would incur a sentence of 14 years, not 10. The offence of threat to kill is often, in my experience, tried summarily and not punished with imprisonment. That is because the common-or-garden offence of threat to kill is regarded as one made in the heat of the moment during a domestic fracas. Someone may say, ''I'll get you for this; you are a dead man'', only to find himself charged with having made a threat to kill. It sounds serious, but in real terms it is usually not.

Is there an argument for my proposition that we should raise the 10 years to 14? The Bar Council thinks so. It has reservations about the clause; it believes that 10 years is too low a maximum. It compares and contrasts the types of offence in the 10-year range with those in the 14-year range or life. Maximum penalties err greatly on the side of the worst-case scenario. The Bar Council believes that 14 years is a less inappropriate figure. We must ask ourselves how often such measures will be used by the courts. The answer is very rarely indeed. The clause envisages the maximum penalty for an offence not being deemed sufficient by the courts. What research have the Government done into how often the maximum sentence for an offence is imposed by the courts? My experience is that that happens only rarely. One can hardly think of any occasion when a maximum sentence has been imposed. When it does happen, once in a blue moon, it makes the headlines. I wonder whether the provisions in the clause will make a material difference to the sentencing practices of the courts, given the strong powers available to them.

It is a narrow amendment, which recognises that we are dealing with a draconian power that will be used sparingly. I hope that the Minister finds merit in my

argument, which is supported by the Bar Council among others, that it might, in a specialised case like this, be more appropriate to have the definition read that an offence is a serious offence if it is a specified offence under schedule 11 and that it therefore carries a 14-year sentence rather than a 10-year one. Debates on whether the schedule will be extended to cover other offences may come later, but for the moment I leave that thought with the Minister. I hope that if the Minister rejects the amendment he will explain why.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

May I ask the Minister to give us information on present practice and on the implications of the 10-year maximum in the clause and the 14-year maximum proposed in the amendment? They are well-known alternatives, as both are used by the courts. I ask because everyone presumes that the provision will be triggered only in exceptional cases. I do not have a figure in my mind for how often the maximum sentence is imposed. However, as the hon. Member for Woking said, it must be almost never. It is extremely unusual—leaving aside mandatory life sentences. If the Government intend the provisions to apply only in the most exceptional cases, it is important to consider whether 10 years is the right cut-off point, or whether 14 years, with the inevitable amendments that the hon. Gentleman suggested, would be right.

Have the Government obtained any assessment in relation to the two obvious questions: how many people a year could be expected, from the best predictions, to receive extended sentences; and what would that mean for the Prison Service, translated into people per year? As the people in question would be likely to be in prison for a long time, although there might not be tens of thousands of them, prison places would be affected.

Hilary Benn (Labour, Leeds Central)

The hon. Member for Woking, in his usual gentle way, chided us for the multiplicity of Government amendments. He will, I think, recognise that the vast bulk of them are consequential drafting amendments. However, I do not accept his argument. I know that it can become difficult to follow matters, but if a Committee's part in the legislative process is listening to arguments about a Bill and engaging in debate—a process that, surprise, surprise, continues in Government—the worst thing that can happen is for Governments to say that they will stick with what they have published, and not budge, because their priority is not to open themselves to the sort of charge made by the hon. Gentleman. It is better to get things right. That may involve reflecting on the process as we go and deciding whether the provisions are right, but in my view that results in better legislation than a refusal to budge an inch from what is published, for fear of being subjected to the gentle criticism that I have just experienced.

Humfrey Malins (Conservative, Woking)

Of all the Ministers I have come across, I find it hard to think of one who listened as well as the Minister has in this Committee. He is a tremendously good listener. A problem, however, is that, having listened, he never accepts the argument.

Hilary Benn (Labour, Leeds Central)

That may have something to do with the quality of the argument—but I do not direct such an unkind criticism at the hon. Gentleman for one second.

Before I deal with the substance of the amendment, I want to answer the question asked by the hon. Member for Southwark, North and Bermondsey about the impact that the provisions will have. It will depend on how the courts, having regard to the trigger offences and the thresholds that we have set, operate the assessment of

''significant risk to members of the public of serious harm''.

That is quite difficult to know. However, we have assumed in our modelling that over time—because it would take time for the effect to develop—there would be an additional 900 in the prison population. That is only modelling, of course, and the honest answer is that it is difficult to assess the effect, because it depends on the courts' interpretation of the provision.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Obviously, it is a gradual process. By what time does the modelling suggest a potential number of 900? Would it be after five years or 10 years?

Hilary Benn (Labour, Leeds Central)

I will have to check on what assumptions were used in the modelling, and will let the hon. Gentleman know, if that is all right.

In essence, we think that 10 years is a more appropriate period than 14, although I understand the argument advanced by the hon. Member for Woking. If the amendment was made, the sentence of public protection could not be passed for dangerous offenders who committed offences such as threatening to kill—an example given by the hon. Gentleman—indecent assault, maliciously administering poison so as to endanger life, or causing death by dangerous driving, which is a topical subject.

All such offences carry a maximum sentence of 10 years. If we give the court the ability to have regard to those offences and then to apply the test in clause 205(1)(b), we need to maintain the trigger at the 10-year maximum. A 10-year threshold is not disproportionately punitive to those who have committed offences that carry a maximum sentence of 10 years, although I acknowledge what the hon. Gentleman said about the infrequency with which the maximum sentence is applied.

The ultimate safeguard against disproportionate impact remains the judgment of the court, having regard to that threshold. I have twice advanced the argument as to why the Government believe that it the right threshold. It is for the court to make a judgment about the significant risk of serious harm. If a court judged that there would be a significant risk of serious harm to members of the public if an offender was to be given another opportunity to commit further offences, a lay person would ask how the court intended to protect him from that risk.

That brings me back to the question that I asked at the start: whether release should be based not on an assessment of the risk but on the expiry of a determinate period—at which point offenders come

out, even though we know from sad experience that they are just as dangerous as when they went in.

Humfrey Malins (Conservative, Woking)

I thank the Minister for his helpful words. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 204 ordered to stand part of the Bill.

Schedule 11 - Specified offences for purposes of Chapter 5 of Part 12

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I beg to move amendment No. 903, in

schedule 11, page 212, line 5, leave out paragraph 11.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following amendments:

No. 741, in

schedule 11, page 212, line 15, leave out paragraph 17.

No. 742, in

schedule 11, page 212, line 16, leave out paragraph 18.

No. 743, in

schedule 11, page 212, line 17, leave out paragraph 19.

No. 744, in

schedule 11, page 212, line 18, leave out paragraph 20.

No. 904, in

schedule 11, page 213, line 22, leave out paragraphs 43 to 46.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The amendments are all probing; they deal with different items in schedule 11 to test how the list was compiled. Part 1 of the schedule lists violence offences, of which there are 62; and part 2 lists sexual offences, of which there are 36. One offence in each category is

''aiding, abetting, counselling, procuring or inciting the commission of''

any of the other offences listed.

The offences mentioned in the amendments were chosen to test the water. The first, in paragraph 11, is the offence of abandoning children, under section 27 of the Offences Against the Person Act 1861; other amendments deal with further offences under that Act. The last amendment would leave out the offences under the Prohibition of Female Circumcision Act 1985; riot under the Public Order Act 1986; and violent disorder and affray under sections 2 and 3 of the same Act. The amendments tabled by the hon. Member for Woking list other offences. They are sample counts to test the proposition.

Do the Government believe that the offences in the list meet the threshold of seriousness that is necessary for someone to be defined as dangerous under clause 209? For example, a neglectful parent, who has a conviction under paragraph 11 for abandoning children, might later be convicted of affray under paragraph 46, but would that make that person dangerous? Such a person may have many defects and would clearly have broken the law, but neither event would make them dangerous according to the definition of that word that is generally understood. Although clause 209 contains a reasonableness test, which I understand, being convicted of such an offence

would take a person into a certain league, so that they could receive an extended sentence under clause 207. Of course there are some complications, of which I am sure the hon. Member for Woking is aware. For example, certain offences, such as affray, carry a maximum sentence of three years, and certain clauses, such as clause 205, would not apply to those cases because a higher sentence is necessary to trigger them. I think that that is right, but I stand to be corrected.

However distasteful we might find them, some of the offences listed could be regarded as ideological offences. For example, female circumcision might be thoroughly distasteful to everyone in Committee, but it might be committed as a result of the pressures of a strong cultural background. In such cases, it may be inappropriate to define a person as dangerous, so I wonder whether all the implications have been thought through. I have not checked the figures, because I have not asked a parliamentary question about it recently, but there cannot be many convictions for female circumcision. However, I am unsure whether those convicted and punished for that offence would be any less likely to reoffend if the act was carried out on the basis of a strong cultural or faith tradition. In some cases, punishment will not necessarily do any more than force hesitation and will not force a person to accept that what they did was wrong.

Affray, listed at paragraph 46, encompasses a whole range of activities. There is very dangerous affray—we saw some of that on local election day in my constituency last year—but affray can also be much less serious. The definition under the Public Order Act 1986 is as follows:

''A person is guilty of affray if they use or threaten unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.''

It can be committed in private, as well as in public places. I accept that it is a violent offence, but is it the sort of dangerous offence that would justify triggering that definition for the purposes of this legislation?

I hope that those examples test whether the list is the right one. Rather than having a list of nearly 100 offences, it might be better to leave it to the court to apply the test on the basis of a general definition of a serious sexual or violent offence, rather than using a list that will, as the hon. Member for Woking said, be out of date within months, if not weeks, of becoming law.

Humfrey Malins (Conservative, Woking)

I would like to deal with amendments Nos. 741 to 744. They are probing amendments that would knock out paragraphs containing the well-known offence of assaulting an officer preserving a wreck, as well as the more popular offences of assault with intent to resist arrest, actual bodily harm and injuring persons by furious driving—another rarity. I should be interested if the Minister could tell us how many convictions there have been for assaulting an officer preserving a wreck in the past 20 or 30 years, or even—if he has such figures—40 years. There might be one or two more for furious driving.

Hilary Benn (Labour, Leeds Central)

I cannot help with preserving a wreck, but yesterday I asked the same question about furious driving, and I can give the hon. Gentleman the answer. In 2001, 83 persons were proceeded against for furious driving, of whom 38 were committed to the Crown court for trial. By the end of 2001 there were 16 proceedings for trial and eight people had been found guilty.

Humfrey Malins (Conservative, Woking)

That is most interesting. The Minister, for obvious reasons, did not dare ask how many offences had been recorded of assaulting an officer preserving a wreck. I shall take a wager: we can bet something substantial—or significant, depending on the next clause—on how many such offences there have been in the past 30 years.

The purpose of my amendments is to ask the Minister three straightforward questions about the schedule. First, how were the 62 violent offences chosen? What methods were used? Was there wide consultation? Secondly, were any interesting offences omitted from the schedule? Was anything considered then rejected, and if so, for what reason? Thirdly, is there any prospect of making additions to the schedule? If so, does he have any offences in mind?

The importance of the nature of the schedule becomes apparent when one looks more carefully at clause 205. The Minister must correct me if I am wrong, but it seems that the trigger in clause 205 will work as follows. A defendant is in the dock and has been convicted of a serious offence—for example, grievous bodily harm with intent. The judge has to sentence. I read the clause several times before I was sure of the truth of this: the judge has then to address himself to the question of whether there is a significant—or substantial, but we shall talk about that later—risk of the defendant committing a specified offence in the future. A specified offence, as we have seen, can be a very downmarket offence. I think that we all agree that offences such as assault with intent to resist arrest—that is a section 38 assault—are at the bottom end of the market.

I hope that I am putting this adequately, but the scenario is that a conviction for a top offence will be coupled with consideration of the serious risk of a further specified offence, which could be very low level. Those who sentence someone who has been convicted of a serious offence may be assisted by the prosecution, which might not be a happy trend. We shall discuss later whether someone should be sentenced for what they have actually done rather than what they might do, and that is a bigger matter of principle. However, an unhappy scenario is developing in relation to the schedule. There is a prospect of further specified offences being considered, and specified simply means specified, rather than specified with a 10-year backup.

I simply do not see how the provisions will work in practice. If someone pleads guilty to a serious offence, such as a section 18 wounding offence, it is inevitable that someone who looks at his record will think that he will commit further offences. Furthermore, how does one sentence him? I may be wrong, but if one is satisfied that the thresholds have been crossed as regards the offender's probable future course of

action, one is stuck, even if this is his first offence, with a certain sentence—one may believe that one's sentencing power is not adequate, but there will be a 14-year or life sentence. I put those general points to the Minister because I am uneasy about the practical, day-to-day consequences of the schedule and the various classes of offence.

James Clappison (Conservative, Hertsmere)

I apologise for my unavoidably late arrival. However, I have listened carefully to my hon. Friend, and his starting point was someone who appeared before the court charged with causing grievous bodily harm. Would not actual bodily harm also fit the bill as a specified offence, although there would also have to be a further offence and the risk of serious harm to the public for it to be dealt with as a dangerous offence?

Humfrey Malins (Conservative, Woking)

Yes, my hon. Friend gives another telling example, and the Minister is obliged to explain the selection of offences a little more. We look forward to hearing from him.

James Clappison (Conservative, Hertsmere)

Will my hon. Friend confirm from his wide legal experience that when we refer to actual bodily we mean any physical harm of any description that can be detected?

Humfrey Malins (Conservative, Woking)

Yes, my hon. Friend is right. The definition of actual bodily harm is some bodily harm, which can be as little as a bruise, a graze or a black eye. It ranges from quite a serious offence to the very bottom end of the market, which could include any visible injury—even a bruise or a little scrape.

On that note, I hope that the Minister will give us more of the background to the schedule. We look forward to hearing from him.

James Clappison (Conservative, Hertsmere)

This subject interests me. I listened carefully to my hon. Friend's opening remarks, and I agree with him. The key aspect of clause 205 is that when someone who has been convicted of a specified offence is sentenced, there must be

''a significant risk to members of the public of serious harm''

occasioned by the commission of further such specified offences. We would like from the Minister an exposition of the exercises that sentencers will have to perform when someone is before them. It would be easier to draw conclusions about such a risk if someone were before the court for a serious first offence such as grievous bodily harm. However, for less serious offences such as actual bodily harm, which although it may be serious can encompass offences less serious than violence, we need an exposition from the Minister of the sort of exercises that sentencers would have to perform.

Schedule 11 contains a long list of sexual offences. However, I draw a distinction between sexual offences that involve consenting adults and those that do not. The Sexual Offences Bill will create new offences for consenting adults such as outdoor sex, and we shall be studying that with great interest. As a member of the Select Committee on Home Affairs, I do understand why that should be considered an offence; but although I am besieged in my constituency surgeries by people complaining about a great many things, that has not been one of them. I look forward to hearing

the Minister's explanation. Neither have I heard any complaints about the offences commonly associated with public toilets.

Do the specified sexual offences in schedule 11 include acts committed by two consenting adults? There is a big distinction between such offences and serious offences in which there is a lack of consent of adults or minors.

Hilary Benn (Labour, Leeds Central)

How has schedule 11 been drawn up? It is intended to be a complete list of all sexual and violent offences carrying a maximum sentence of two years or more. The trigger for considering an extended sentence is one of the offences in the schedule that carries a maximum sentence of between 2 and 10 years; for public protection the trigger is an offence on the schedule that carries a maximum sentence of 10 years and above. That is how the two parts relate. Will the list be added to? Yes, indeed it will. The Sexual Offences Bill, which the hon. Member for Hertsmere (Mr. Clappison) mentioned and which will be given a Second Reading in the other place later this week, will change a great many offences in updating the law. It will also affect schedule 11.

In answer to the hon. Gentleman's question about consent, the list of offences in part 2 of schedule 11 reflects offences as they are in statute at present. However, that will be subject to change if Parliament sees fit to pass the Sexual Offences Bill, which will amend the parts of the schedule. I wish to reflect on the point raised by the hon. Gentleman. If it is not solely a list of offences that do not involve consenting adults, I will write to him.

Sylvia Hermon (UUP, North Down)

It is good to see you back this morning, Mr. Illsley.

Will the Minister elaborate slightly? He has explained that the list in schedule 11 is intended to be ''a complete list.'' He will know that in Northern Ireland, specified violent offences include riot and affray. These are not included in schedule 11. We should bear it in mind that there have been serious race riots in England and that, curiously, in Northern Ireland sentencing for riot and affray is substantially lower than in England. Why have those two been left out of the list?

Hilary Benn (Labour, Leeds Central)

I trust that I have understood the hon. Lady's point; riot, violent disorder and affray are to be found in paragraphs 44, 45 and 46 of schedule 11.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I just want to comment following the intervention of the hon. Member for Hertsmere. It strikes me that the only offence that might come into the category that the hon. Gentleman mentioned is soliciting by men. I notice that soliciting by women is not included, but I am sure that there is such an offence, because every Monday the inner London magistrates courts have a large list relating to female soliciting.

Hilary Benn (Labour, Leeds Central)

That is a good point, and I shall reflect on it in trying to deal with the question.

The main issue that was raised about the amendments was whether being found guilty of one of the offences would immediately put the person

concerned into the category of a dangerous offender. The answer is of course no. As the hon. Member for Woking pointed out, the court would then have to apply the test of significant risk of serious harm. I repeat that that is the really important safeguard. In the end, the courts must be trusted to operate the provision sensibly, and to have regard to that test. A test of serious harm is quite a high threshold.

As to the concern that has been raised about whether the court will give someone an indeterminate sentence because, on consulting the list of specified offences, it has decided that at some time in the future he might assault a police officer preserving a wreck, I do not see how that could possibly fall within the definition of a significant risk of serious harm. It would be left to the court to weigh up the matter. The intention is clear and the circumstances to which the chapter of the Bill relates are clear. It is intended to deal with the current gap in the system. I expect that the hon. Member for Hertsmere recognises—I do not know whether I said this before while he was in his place—that a risk of serious harm to the public remains from some people at the end of their determined sentences. That is the test that the court would be asked to apply within the framework of the clause.

James Clappison (Conservative, Hertsmere)

I am grateful to the Minister for that response. I accept what he says, and that the purpose is to protect the public from serious harm. I think that he would agree that an appropriate line needs to be drawn somewhere to enable a decision to be made about who should be affected by the provision and what offences qualify. That was the point of my question. I shall be grateful for the Minister's comments in a letter.

One point that worried me, however, was whether in future consenting adults might be affected by provisions intended to deal with dangerous offenders. I am quite liberal in such matters and I draw a strong distinction between what consenting adults get up to and the law that is intended to protect minors and adults who have not consented to the relevant actions.

I am concerned about the idea of bringing people within the compass of such provisions, and especially the newly created offences such as outdoor sex and garden sex. My constituents will be relieved to know that it is still permissible to have sex in their homes. As we are creating new offences, it is important to mention the point.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

So garden sex in the suburbs is adding a bit of excitement to a morning of considered and careful debate.

I think that there is broad consensus on the Opposition Benches for the general proposition of the hon. Member for Hertsmere that consensual activities should not be placed in the same category as things that are clearly a danger to other adults or children. I shall not prolong the debate by asking the Minister to answer my points about people who commit offences that they see as culturally acceptable, but I should be grateful if he could reflect on the questions that I asked and perhaps give

me a reply in writing. I hope that this debate has raised a set of questions about the appropriateness of a list and this list. We shall have to reflect on those matters. The sets of trigger mechanisms are quite complicated. There are some concerns about the list. I can see where it is derived from and, although it appears to have gaps, I shall reflect on what the Minister said. I am sure that we shall return to the issue, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Hilary Benn (Labour, Leeds Central)

I beg to move amendment No. 756, in

schedule 11, page 214, line 7, after 'racially' insert 'or religiously'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss Government amendment No. 757.

Hilary Benn (Labour, Leeds Central)

These are two drafting amendments that cover paragraphs 57 and 58, which as currently drafted do not take account of the changes that were made by the Anti-terrorism, Crime and Security Act 2001, which extended such provisions to cover religiously, as well as racially, aggravated offences. The amendments make a small change to reflect the law as it currently stands and to deal with a drafting error.

Amendment agreed to.

Amendment made: No. 757, in

schedule 11, page 214, line 8, after 'racially' insert 'or religiously'.—[Hilary Benn.]

Question proposed, That this schedule, as amended, be the Eleventh schedule to the Bill.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I again ask the Minister to reflect on whether it is better to have the schedule in the Bill or to issue the list by way of guidance. Another way would be to have the norm as a list, which would be in sentencing guidelines. I ask Ministers to reflect on that.

Question put and agreed to.

Schedule 11, as amended, agreed to.

Clause 205 - Life sentence or imprisonment for public protection for serious offences

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 684, in

clause 205, page 114, line 25, leave out from 'a' to end of line 27 and insert

'substantial risk of his committing further specified offences involving a significant risk of serious harm to members of the public.'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following amendments:

No. 712, in

clause 205, page 114, line 25, leave out 'significant' and insert 'substantial'.

No. 713, in

clause 205, page 114, line 27, leave out 'specified' and insert 'serious'.

No. 714, in

clause 206, page 115, line 8, leave out 'significant' and insert 'substantial'.

No. 715, in

clause 206, page 115, line 10, leave out 'specified' and insert 'serious'.

No. 716, in

clause 207, page 115, line 36, leave out 'significant' and insert 'substantial'.

No. 717, in

clause 207, page 115, line 38, leave out 'specified' and insert 'serious'.

No. 718, in

clause 208, page 116, line 25, leave out 'significant' and insert 'substantial'.

No. 719, in

clause 208, page 116, line 27, leave out 'specified' and insert 'serious'.

No. 720, in

clause 209, page 117, line 10, leave out 'significant' and insert 'substantial'.

Humfrey Malins (Conservative, Woking)

We have moved to an important clause. We have dealt with the definitions clause and the schedule, and we now see how those provisions bite in practice. I express a distinct unease at the prospect of sentences being issued perhaps more than hitherto for both the offence before the court and what might happen in future. The significant risk of a future offence is a subjective judgment, and there might be some variety in the way in which such matters are assessed.

It is as well to focus on the current wording of subsection (1)(b), which says that the provisions apply if

''the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.''

It is vital that we understand what that means in plain English, because there is an ambiguity. Does that passage mean, on one hand, that there would be a serious risk of harm if the offender committed the specified offences again? The answer to that would almost certainly be yes. Or, on the other hand, do those words mean that there would be a significant risk of the offender committing further offences? Furthermore, would those offences pose a significant risk of harm to members of the public? There is a difference. If it means the latter—I think it should, hence my amendment—rather than the former, it is the risk of further offending that triggers the concern rather than the risk of harm if further offences are committed.

It is worth focusing for a moment longer on that point. If the court puts subsection (1)(b) into different language it means the same thing. Subsection (1)(b) says that the clause will apply if the court thinks that

''there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.''

Would there be a significant risk of serious harm if the defendant, by chance, commits any further specified offences? Of course there would be. However, that should not be the question. The question should be whether there is a serious risk that he will commit further specified offences. However, the actual wording more or less implies, and this is the plain English of it, that if, by chance, the defendant commits any further offences there will be a risk of serious harm. I urge hon. Members to read the subsection, because the more I read it, the more I read into it my interpretation.

Paragraph (b) does not say whether there is a significant risk of the defendant committing the offences; it just asks what the chance of significant damage is if he commits them. What is a judge to answer? As night follows day, if a judge is asked whether there will be serious harm to the public if a defendant commits further specified offences, the answer will almost certainly be yes. However, the judge is asking himself the wrong question. The judge does not have to ask himself whether the risk of damage to the public is pretty nasty if the offender commits further offences, because anyone in the courtroom can say, ''Of course it is.'' The judge should be asking himself a different question.

James Clappison (Conservative, Hertsmere)

My hon. Friend is making some excellent points. We all want to protect the public from serious harm, but at the same time we want provisions that are workable for the courts. Will my hon. Friend, using his experience, reflect on the question of how judges will arrive at that opinion for someone who is appearing before the court for a minor offence? How will the court come to such opinions? How will that work in practice?

Humfrey Malins (Conservative, Woking)

My hon. Friend raises a very interesting question on just what procedure a judge will go through. There was an indication earlier in the Bill of the prosecution becoming slightly more involved in the process in terms of their looking at pre-sentence reports. I shall pose some rhetorical questions to my hon. Friend and to the Committee. Will the prosecution make representations about sentences from now on? Will the pre-sentence report contain a specific measure to deal with that? Will the defence be entitled to make representations?

My hon. Friend rightly draws attention to the process that must be followed. However, that must not take our eyes away from the central issue of what clause 205 says, as opposed to what the Government want it to say. We know that they want subsection (2)(b) to ask, ''Is there is a significant risk that he will commit further offences, and will they pose a problem?'' The Government want to know what is the risk of someone committing further specified offences. That is the critical point, but I really do not think that it says that. I think that it asks quite plainly, ''Does the court think that there is a significant risk of serious harm to members of the public occasioned by the commission of any further offences?'' The answer to that would be yes, but it should not be the question.

I hope that I have not laboured the point too much, and I hope that the Minister will take it on board. It is a matter of plain English, which is why I think that amendment No. 684 is vital. I see several foreheads that are slightly furrowed by my point. I think that I am right to say that subsection (2)(b) says what the Government want it to say. My amendment, which, in effect, sets out the proposition that the court has to believe that there is a significant risk that he will commit the further offences and that further serious damage will follow. That is the point. At the risk of labouring the point, the answer to the question, ''Will some jolly rotten things happen if he commits a further offence?'' is yes. However, the important question,

''Do I have to consider what the odds are of his committing further offences?'' is not spelled out.

The rest of my amendments concern omitting the word ''significant'' in several parts of this and subsequent clauses, and substituting the word ''substantial'', and, ditto, leaving out on a number of occasions in clauses 205, 206, 207 and 208 the word ''specified'' and inserting ''serious''. The object is to bring clarity to the language and to up the threshold—if I may put it in that neutral way.

Under clauses 205 onwards, if the offender has committed a serious offence or the court considers that there is a significant risk, the court must impose a life sentence or an extra period of imprisonment. The consequence is that a life sentence will be imposed on the basis that the offender may commit offences in future. That is a very serious sanction. The court should therefore have a substantial belief that a danger to the public exists. Despite my earlier point, which this one complements, the word should be ''substantial''. The requirement that the risk should be ''significant'' is difficult to quantify. What is significant risk? The fact that the defendant has already committed one of the offences in the schedule could, on its own, give rise to a belief that there is a significant risk that he will commit another. However, I am trying to increase the requirement to a substantial risk. That would ensure that the court had to have some sort of substantive belief in the existence of such a risk before it could apply the enhanced sentencing provisions.

Substantial or significant? Is there a difference and does it matter? When in doubt, go to a dictionary. We are dealing with important words. The best distinction that I can find is in the Collins dictionary—the word significant means meaningful or indicative and the word substantial means great, weighty or full of substance. I sense, therefore, that substantial is a stronger word than significant.

Mr. Illsley, you were not with the Home Affairs Committee two years ago, when it toured Europe to consider asylum issues. The hon. Member for Wellingborough (Mr. Stinchcombe) was there when, one day in Hungary, we were talking about the choice of words. We were told that the Hungarian language has four times as many words as ours, including more than 150 words meaning house and more than 50 words meaning laughter. We had a competition—how many words could we think of in English to mean laughter or laugh? It was serious, and the hon. Gentleman did very well. However, I challenge the Committee to think of 10 such words—there are 10. I offer merely guffaw, chuckle and chortle; there are more. Let the Minister think about it.

Meanwhile, I draw the Committee back to the difference, if there is one, between ''significant'' and ''substantial''. It is not an unimportant distinction; it might matter. The word significant, as used in clause 205 and subsequently, is not precise enough in view of the grave consequences of the findings that could be

made as a result of it. What is the approximate level of probability, on a scale of one to 100, of ''significant''? Would not it be preferable and more clearly in tune with human rights legislation if we used ''substantial''? As well as checking in the dictionary, I spent half an hour looking at the thesaurus, that magnificent tome on words and the English language, and concluded that substantial is a stronger word than significant. There is some merit in it.

The Prison Reform Trust is another group that does not like ''significant''. It said that it was not sufficiently precise, in view of the grave consequences of the courts making such a finding. I ask the Minister to ponder on that point, not least because there is a good precedent for ''substantial''. The trust points out that that word would be consistent with the text of clause 6(4)(a) of the draft Mental Health Bill, which refers to the

''substantial risk of causing serious harm to other persons''

being a condition of detention. The word ''substantial'' is used a lot in the criminal law, and it would be preferable to use it in the Bill.

My other amendments would remove the word ''specified'' and insert the word ''serious''. Doing so would be upping the standard, which we need to do.

I hope that my colleagues will contribute to the debate. I have cut short what I might have said, because we have other important business this morning. There are good reasons for using the word ''substantial'' rather than ''significant''. There is an even more telling reason for amendment No. 684. There can be no doubt about the literal interpretation of the clause; it is that the court has only to ask—on the off-chance that further offences will be committed—whether the damage that we are concerned about will result. That is not the question that the Government should want the court to ask; the court should be asking the question posed in the amendment, which I hope carries some support.

By the way, hon. Members may not have been listening to me on the question of ''substantial'' versus ''significant'', but will have discovered instead that there are at least a dozen effective words meaning ''to laugh''. I illustrate the argument by saying that words are important, and that the word in my amendment is better than that in the Bill.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

These are important matters, and I hope that we can persuade the Minister to accept the burden of the argument. That is why I and my hon. Friend the Member for Somerton and Frome (Mr. Heath) put our names to the amendments.

I share the views of the hon. Member for Woking on the interpretation of the clause as drafted. All that the court has to do to trigger what could be a life sentence is to be of the opinion that there is a risk that the defendant might commit any of the specified offences. The answer will inevitably be yes if the person before the court is aged 18 or over and is convicted in that court of a serious offence. The second trigger means nothing. One is home with a life sentence after the first. That seems to me the inevitable implication.

We are talking about triggering the most serious action that a court can take—giving a life sentence. We should allow that sentence to be triggered extremely rarely, and only if it is entirely justified against the sweep of criminal justice legislation. We need to reflect on the need to avoid far-reaching and unexpected effects on future sentencing policy.

There is obviously a difference between the terms ''significant'' and ''substantial''. Anything that is recognisable or identifiable can become significant. In the words of Professor Ashworth, who has been referred to before,

''the term 'significant' used in clauses 205–209 is not sufficiently precise in view of the grave consequences of a finding. What approximate level of probability, on a scale from 1 to 100, is 'significant'?''

That strikes me as a good question. It would be helpful to know the Government's thinking. I consider that the word is entirely the wrong one. It suggests a lesser threshold, a smaller qualification and a less serious matter. We should be considering probability—the more likely outcome.

Lastly, we need the amendments because otherwise the court could give an extended or life sentence even if the offence that the person might commit later would not itself even attract a custodial sentence. For example, assault occasioning actual bodily harm, a section 20 offence, would not normally bring a custodial sentence, but in the context of the clause it would trigger stage 2 and put the defendant into a life sentence category. I stand to be corrected but I believe that putting people in fear of violence does not, again, normally bring a custodial sentence. However, in the context that we are discussing it would trigger the most severe consequences. As to the example that we mentioned before—soliciting by men—I am not aware of its ever bringing a custodial sentence. It may happen occasionally. That would automatically, if it was thought to be a possibility, trigger the most severe sentences.

The consequence of the wording is that if the court believed that there was a risk of any offence defined in the list as sexual or violent—and being on the list would be sufficient—the enhanced sentence would have to be imposed. We shall come to the question of the must/may option. However, at present the word is ''must''. There is no choice. Therefore either the clause will have unintended consequences or, if those consequences are meant, they are entirely the wrong ones.

Humfrey Malins (Conservative, Woking)

Does the hon. Gentleman agree that under clause 205(1)(b) the court does not have to believe that there will be any further offences—merely that if there were, by chance, the consequences would be nasty?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That is certainly my reading. All that the court must assess is what the consequence of a particular offence would be.

Paul Stinchcombe (Labour, Wellingborough)

I appreciate the argument, but how can it be right? There would be no risk of harm if there were no risk of a further offence.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Because of the drafting of subsection (1)(b). The drafting presupposes that an offence would be committed and that it would entail a significant risk to members of the public. However, it is not phrased in that way. It does not state: ''A person aged 18 or over, if convicted of a serious offence, will trigger a further serious extended penalty if the court is of the opinion that there is a significant risk that he or she will commit one of the further offences which would be a significant risk to members of the public.'' Whether the public will be at risk is a perfectly proper consideration. The court should have to take a view about whether there is a risk of an offence being committed and the public put at risk. That is not what the clause states.

Hilary Benn (Labour, Leeds Central)

The furrowing of the brows referred to by the hon. Member for Woking resulted from the fact that I was having difficulty applying the hon. Gentleman's construction to clause 205(1)(b). Not for the first time in our proceedings, I entirely agree with the helpful intervention by my hon. Friend the Member for Wellingborough because I do not see how the possibility of significant risk to the public can arise if there is no risk of a further specified offence being committed. I cannot read the clause in the way that the hon. Member for Southwark, North and Bermondsey does. The key question is whether further offending will cause serious harm, but as my hon. Friend rightly says, there must be a risk of further offending before one can consider whether it would cause harm. One cannot divide the two, which is why I do not follow the hon. Gentleman's argument. For the avoidance of doubt, there must be a risk of further offending for clause 205(1)(b) to apply.

The second point that I want to make about the amendments is that we must remember that we are talking about significant risk. On the issue of ''significant'' versus ''substantial'', when I first read the amendments tabled by the hon. Member for Woking, I asked myself what the difference was. Although I can understand the argument that ''substantial'' might be slightly stronger than ''significant'', there is not a big difference for the purposes of interpretation.

To put that aspect aside for a moment, the key is to reduce the risk of serious harm to members of the public. What does serious harm mean? It means significant risk to members of the public of death or serious personal injury, whether physical or psychological. Therefore, many of the arguments that we have heard fall by the wayside because the court must apply that test, which is, rightly, a very high test. It deals with the fears that have been expressed by Opposition Members that this part of the Bill ranges so widely that the courts will say to offenders, ''We think that you might commit one of the offences listed in the schedule, so we will lock you away for a very long time and not let you out.'' That is not the case because the provision is tightly worded. If the court were to decide that there was a significant risk that a member or members of the public would suffer death or serious personal injury, whether physical or psychological, the public would say,

''Hang on; if that is the court's judgment, working on the basis of risk assessment, surely it is right in those circumstances for the court to hand out a sentence that protects me or some other member of the public from death or serious injury.''

Humfrey Malins (Conservative, Woking)

But can the Minister tell us why the word ''significant'' is thought to be more appropriate today for this Bill, but the word ''substantial'' was thought to be more appropriate in the case of the draft Mental Health Bill, which deals with exactly the same issue?

Hilary Benn (Labour, Leeds Central)

I cannot answer the question in relation to the draft Mental Health Bill. All that I can say is that, having considered the argument in the round, significant risk is the right test, in so far as ''substantial'' would apply a higher test. However, I do not share hon. Members' perception of the difference.

Humfrey Malins (Conservative, Woking)

It was the dictionary.

Hilary Benn (Labour, Leeds Central)

Well, my view is that ''significant risk'' is a perfectly reasonable test to ask the court to apply in deciding whether serious consequences are likely. It is reasonable to require the court to weigh the issue and to decide whether, in lay person's terms, there is a significant risk.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am sure that the Minister accepts that there is no argument about the dangerous offenders provisions being triggered where the court decides that the defendant is likely or highly likely—I am avoiding the two adjectives for the moment—to commit an offence that would result in serious harm, which is defined as

''death or serious personal injury, whether physical or psychological''.

There is no difficulty about that. The question is whether that is what the syntax of subsection (1)(b) means, so there is an argument about the drafting.

On the substantive point, however, the Minister surely accepts that ''significant'' is not as high a threshold as ''substantial''. Will he answer my Professor Ashworth question? How high, on a scale from one to 100, must the probability be for the risk to be significant? It could be one out of 100.

Hilary Benn (Labour, Leeds Central)

The honest answer is that there is no answer on a scale from one to 100. As is the case with many provisions in the Bill, and in the criminal justice system generally, one trusts the court to use its judgment in making an assessment. It would not be helpful to determine where ''significant'' fell on a scale from one to 100, any more than it would be to determine where ''substantial'' fell. That would not greatly assist the court in carrying out its responsibilities under the Bill. However, the phrase ''substantial risk'' is sufficiently clear when allied with the phrase ''serious harm''—that is defined in clause 204, which we have agreed—to give the court the guidance that it needs to operate the provisions. For reasons that the Committee understands, there is a weakness in the current system as regards dealing with those who remain very dangerous even though they have come to the end of a determinate sentence.

James Clappison (Conservative, Hertsmere)

I am sure that the intentions are good, and we all want to protect the public. However, we also want to ensure that the provisions work, and I want to put two substantial points to the Minister as briefly as I can. First, the evidence before the court will, as the Minister knows, relate to the current offence, which could be any of the offences in the schedules, so how will the court reach an opinion about risk? Secondly, what opportunities will the defendant have to make representations when the court does reach an opinion? Will he be given any warning of the court's deliberations? Will there be a further hearing?

Hilary Benn (Labour, Leeds Central)

The answer is in clause 209, which deals with the assessment of dangerousness. As the hon. Gentleman will see, the court will need to take account of

''all such information as is available to it about the nature and circumstances of each of the offences . . . any information which is before it about any pattern of behaviour of which any of the offences forms part, and . . . any information about the offender which is before it''.

The court must therefore have regard to a very wide range of considerations in assessing dangerousness, and that is sensible.

James Clappison (Conservative, Hertsmere)

I am grateful to the Minister, but the evidence before the court will relate to the present offence. Where will this other information come from? Will the offender be warned that the court is thinking of passing a particular sentence and be given the opportunity to make representations and to test the evidence?

Hilary Benn (Labour, Leeds Central)

Well, an obvious answer to the first question is that information will be contained in pre-sentence reports, which we touched on earlier. That information may range very widely over the circumstances of the defendant's previous offending behaviour, and all the other information referred to in subsections (2) or (3). Elsewhere in the Bill we agreed on arrangements for ensuring that such matters are disclosed. In such circumstances, if there are representations before sentence is passed, as is normal, the court will take them into account in deciding how it will exercise the powers that we are debating in relation to the clause.

James Clappison (Conservative, Hertsmere)

I have listened carefully to the Minister and would ask him to think carefully about the mechanics. We should remember that the defendant is before the court for one of the offences from the wide range of those contained in schedule 11, such as actual bodily harm or grievous bodily harm. The court might come to the opinion that a much longer sentence can be passed on the basis of the

''significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences'',

which is a quantum leap from some of the offences that appear on that schedule, and for which the offender has been convicted. The Minister should think carefully about the basis on which that quantum leap will be made, as regards evidence.

The Minister referred to the social inquiry report, which courts often have in addition to the evidence relating to the offence. However, the probation officer

prepares the social inquiry report and examines the background and history of the person concerned that relate to the offence in question. Courts sometimes take such reports into account in order to mitigate offences. The Minister is saying that information contained in the social inquiry report can seriously aggravate the position of the offender and take him from within the bounds of the offence in question into a much more serious category. He is turning the social inquiry report into evidence on the basis of which the offender might receive a much more serious sentence. Has the Minister discussed the matter with representatives of the probation service? I seek further information on that, because my intentions are the same as those of the Minister: I want to protect the public. If there is a risk of people causing serious harm to the public, let us protect the public. However, we should ensure that the mechanics are right and that they are workable.

Hilary Benn (Labour, Leeds Central)

On the information that would be available, under clause 209 the court will take into account all the information that is to hand about the nature and the circumstances of the offence, and other information about the pattern of behaviour, of which the offence forms part. That would include relevant previous convictions and any information about the offender. Pre-sentence reports would be the main source of information available to the courts. We have discussed the matter with the probation service.

The court might also refer to specialist assessment tools, such as risk matrix 2000 for sex offenders and the violence risk assessment guide for violent offenders. The probation service is developing the new offender assessment system, OASys—

Humfrey Malins (Conservative, Woking)

It is a pop group.

Hilary Benn (Labour, Leeds Central)

—which is widely regarded as a leading development in trying to assess the basis of the risk. It is not the Oasis to which the hon. Gentleman referred from a sedentary position, and to which many of us are very partial. OASys is currently being rolled out across the probation service and assists in the process. We should be honest about the matter: the task is difficult, and I do not underestimate the argument that the hon. Member for Hertsmere makes about trying to make an assessment about the degree of risk that an individual poses.

The court will have to have regard to all those circumstances in deciding whether it is appropriate to apply the sentence for public protection, bearing in mind that the offender must have been convicted of a serious offence and that the court is of the opinion that there is a significant risk to members of the public of death or serious personal injury—[Interruption.] I am just taking us through this because I think that it is helpful. I do not want any hon. Member to leave the Committee with the impression that a court can decide to give somebody a sentence for public protection for a relatively insubstantial offence because it decides that that person may at some time in future commit one of the offences in the schedule. That is not the case. That is why we were careful to build into the process the trigger, the assessment of significant risk, and the safeguards in clause 205(1)(b). There are also the other circumstances that I have just described and the

sources of information that the hon. Gentleman has helpfully given me.

James Clappison (Conservative, Hertsmere)

I understand the mechanics, but the evidence before the court will relate to the specified offence, and that could be any one of the specified offences in the schedule, including assault occasioning actual bodily harm. That is why we must look carefully at the evidence on which somebody will receive a much more serious sentence because it is felt that there is a need to protect the public. Will an offender in such a position be given a warning that a court is considering passing such a sentence, so that he can test the evidence and make representations?

Hilary Benn (Labour, Leeds Central)

I am sure that that would have to happen, although if I am wrong I will write to the hon. Gentleman. The court will have to make an assessment, and I am sure that the offender will have an opportunity to make representations. The court will have to go through quite a process. It includes the information that will be disclosed to the offender in the pre-sentence report, which under the provisions of the Bill will be sent to the offender and to his or her legal representative. If there are representations to be made, there is an opportunity in the courts to do that.

James Clappison (Conservative, Hertsmere)

Nevertheless, there appears to be no warning to an offender before he appears in court for the specified offence that the court is thinking of passing a much more serious sentence on him. There is nothing in the clause to tell the offender that that could happen.

Hilary Benn (Labour, Leeds Central)

May I reflect on the point that the hon. Gentleman has raised? It is important that offenders are aware of the possible consequences of the sentence that a court is considering. I will reflect on that point and respond to him.

Humfrey Malins (Conservative, Woking)

This has been a worthwhile debate. The hon. Member for Southwark, North and Bermondsey was very supportive of my amendments, and I am grateful to him for that. I am particularly grateful to my hon. Friend the Member for Hertsmere, who has argued clearly and cogently with the Minister for the past few minutes. It is clear that the Minister has a great deal to consider in these amendments. I hope that he will consider them, for there can be no doubt that Opposition Members raised a great many points that should make him reflect very carefully on clause 205. None of us has been convinced by his response to amendment No. 684. It has been pointed out that clause 205(1)(b) is very ambiguous, and that has been reinforced by no less a body than the Bar Council.

Are we to interpret the clause as saying that there would be a serious risk of harm if the offender committed the specified offence again? If the answer is yes, the question of odds or of ''significant'' or ''substantial'' is immaterial. If that is the case, the clause is very badly drafted and should be amended. What about our amendment? Would there be a substantial risk that he would commit further offences, and would they pose a significant risk of harm? That approach is much to be preferred. I hope that the Minister will take it on board. I hope, also, that he will accept that it is not sufficient to say that

the word ''significant'' is as good as the word ''substantial''. A look at the dictionary—to which we should always turn for a definition in times of stress—will tell him that there is a different flavour to the word ''substantial''. It represents a higher threshold and a much better approach.

We are unhappy. I do not think that my hon. Friend the Member for Hertsmere will be entirely satisfied with what he has heard from the Minister, although the Minister has promised to think carefully about the matters.

James Clappison (Conservative, Hertsmere)

I should like to put it on the record that I am grateful to the Minister for offering to write to me. I agree that there is a need to protect the public, but we must get the mechanics right.

Humfrey Malins (Conservative, Woking)

I echo my hon. Friend's remarks. The Minister's points were valid, he approached them in a fair way and he has undertaken to consider the matter. There is no doubt that the Committee is determined to proceed on the basis of protecting the public. Let it not be thought—I am sure that it is not—that anything said on these Benches is anything other than supportive of that view. The purpose of a Committee is to consider matters carefully and occasionally to tease from the Government a slightly different approach. That can be important and could improve the Bill.

Undoubtedly, we shall return to these matters on Report—they are important. Given that, for today, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Hilary Benn (Labour, Leeds Central)

I beg to move amendment No. 628, in

clause 205, page 114, line 35, leave out from beginning to 'the' in line 39 and insert

'In a case not falling within subsection (2),'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following:

Amendment No. 896, in

clause 205, page 114, line 39, leave out 'must' and insert 'may'.

Government amendments Nos. 629 and 630.

Amendment No. 897, in

clause 207, page 115, line 44, leave out 'must' and insert 'may'.

Government amendments Nos. 632 to 634, 636 and 637.

Hilary Benn (Labour, Leeds Central)

May I refer the Committee to the point that I made in response to an intervention from the hon. Member for Woking? On reflection, we did not think that the wording was sufficiently tight to achieve our objective. That is why we propose to amend clause 205. If the tests that we have debated at length are met, and there is an assessment of significant risk of serious harm and therefore serious personal injury, the court must impose a sentence of imprisonment for public protection. The purpose of amendments Nos. 628 to 630, 632 to 634, 636 and 637 is to ensure that where offenders have committed specified sexual or violent offences and have been

assessed as dangerous, they must be sentenced under the new provisions for dangerous offenders.

As the clause is currently drafted, if an offender is assessed as dangerous and has committed a specified offence, the court must impose one of the new sentences if it considers that no other sentence available would be satisfactory for the purposes of public protection. That still leaves the court with the option to pass a normal sentence. On reflection, that could undermine the purpose of the new provisions, which is to ensure that the public are properly protected against offenders who present a serious risk. In order to ensure that dangerous offenders who are convicted of a specified sexual or violent offence can be sentenced only under the new dangerousness provisions, amendments Nos. 628 to 630, 632 and 633 remove the court's discretion to impose alternative sentences.

Amendment No. 628 requires the court to impose a sentence of imprisonment for public protection on an offender who has been assessed as dangerous, and has committed a serious specified offence that is not considered so serious as to justify a discretionary life sentence. Amendment No. 630 requires the court to pass an extended sentence for certain violent and sexual offences for which the offender has been assessed as dangerous and has committed a specified non-serious offence. The essential point is that those amendments ensure that no offenders who are assessed as being dangerous at the point of the sentence, and who have committed a specified offence, may be released before the end of their sentence unless they have had their risk assessed. We are trying to achieve the assessment of risk in the interests of public protection before offenders are released.

Amendment No. 629 prevents the court from imposing a standard sentence on a juvenile who has been convicted of a serious specified offence. Together with amendments Nos. 632 and 633, the amendment provides instead that, in a case in which the offender is not liable under clause 206(2) to a sentence of detention for life under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, the court must choose between a sentence of detention for public protection or an extended sentence. A sentence of detention for life will be imposed only if the court thinks that the latter is not adequate to protect the public.

As the extended sentence will now be available for serious specified offences, amendment No. 634 removes the restriction on the length of extended sentence that may be imposed up to the adult maximum for the offence. Amendments Nos. 636 and 637 make the necessary changes to the interpretation provisions so as to set out that where a sentence of imprisonment or detention for public protection, or an extended sentence, fails to be imposed under the relevant clauses, the court is obliged to pass the relevant sentence.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The Minister spoke to the amendments very professionally. I am not sure whether I grasped all their implications. That may be my weakness. I wonder whether he would be kind

enough to let us have a substitute note on the clause to explain it as it will be if the amendments are made.

Hilary Benn (Labour, Leeds Central)

Gladly.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

We can look at the amended clause and reflect on it.

May I speak to amendments Nos. 896 and 897? They would have a similar effect. The purpose of the amendments is to change the obligatory ''must'' for the discretionary ''may''. They would allow the court to impose a sentence of life imprisonment for public protection rather than make such a sentence obligatory.

I need not expand the argument at any length, but those matters are best assessed by the courts. The Minister will know that our view is that mandatory sentences are not a good thing. The court should have discretion. If we take the view that the court should have discretion in all cases, it would be illogical not to have a view that the court should exercise its discretion in this instance. The deterrent effect, if that is regarded as a consideration, would not be reduced, because both the defendant and the public would know that there was a possibility that a life sentence could be triggered. It would equally protect the public. The amendments would avoid life sentences being passed if the court, on the balance of judgment and having weighed up all the options, decided that there was a better and safer disposal. That is a decision that is reasonably left to the courts rather than having to be anticipated by Parliament. I hope that the Minister will at least be sympathetic to the idea. I appreciate that this debate will not conclude here today, but will go on as the Bill proceeds through Parliament.

Humfrey Malins (Conservative, Woking)

I was simply going to ask, further to the hon. Gentleman's point, whether the Minister feels that it would be appropriate to let us have full explanatory notes on all Government amendments on the day on which they are tabled, so that the Committee might be fully informed.

David Heath (Liberal Democrat, Somerton and Frome)

A precedent.

Hilary Benn (Labour, Leeds Central)

I heard the word ''precedent'' muttered. My explanation of the amendments was clearly not sufficiently accessible. I freely confess that. If I may recapitulate, to enable hon. Members to take on board immediately the importance of the amendments, if the tests that we were discussing at great length this morning are met, and in particular if the assessment is that a significant risk of death or serious personal injury is posed to members of the public, the sentence for public protection must be imposed. That is the purpose of chapter 5. On reflection, we do not think that it is sensible to open up the possibility that another sentence might be made available, which subsection (3) currently does. For the same reason, we do not agree with amendments Nos. 896 and 897. They would weaken the fundamental principle behind the clause, which is that if an assessment of dangerousness is made, release should be based on the assessment of the risk, not when somebody happens to come to the end of a determinate sentence.

Paul Stinchcombe (Labour, Wellingborough)

Does my hon. Friend agree that amendments Nos. 896 and 897 would give a court that had determined that a sentence would be inadequate to protect the safety of the public discretion to impose it none the less?

Hilary Benn (Labour, Leeds Central)

My hon. Friend is, as ever, absolutely right. The proposal is illogical, which is why I resist it. It also undermines the central purpose of the clauses, on which the Committee is agreed, namely that if an offender is that dangerous, release should be based on assessment of risk and not on the expiry of a determinate sentence. That is what it is all about, and I think that the hon. Member for Southwark, North and Bermondsey will, on reflection, accept that argument; the public would expect nothing less.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

This is a very important clause. Obviously, it has to be read with clause 209. It is proper that all those both inside and outside the House with an interest should reflect on all the interlinked sets of debates. There is no difference of objective. We need to provide a mechanism for fair justice and the protection of the public against serious offences. It is a question of how to do it in the most transparent way. No doubt, we shall return to the matter later.

Mark Francois (Conservative, Rayleigh)

Very briefly, may I ask the Minister to allow us to drop him a very big hint? There is a strong rumour that, next week, we shall find a number of new clauses, particularly relating to gun crime. Can he ensure that the explanatory notes relating to those new clauses are available in good time for members of the Committee to examine, as that would assist our proceedings?

Hilary Benn (Labour, Leeds Central)

Yes, that is a fair point.

Eric Illsley (Labour, Barnsley Central)

Fair, but out of order.

Question put and agreed to.

Clause 205, as amended, ordered to stand part of the Bill.

Clause 206 - Detention for life or detention for public protection for serious offences committed by those under 18

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

This might be the only opportunity to discuss the detention of young people in the context of serious offences. What is the current and intended policy about where people aged under 18 in this category should be detained? The Solicitor-General will know that, for a long time, Southwark has managed a place called Orchard lodge, which is on the edge of the borough and has dealt with some

disordered youngsters in a secure way. So far as I know, it has an extremely good reputation. I hope that the Minister will confirm that similar facilities are intended in this case, namely that they should be small, local authority-run secure units, and not adult prisons. I am conscious that we still have young people under 17 in adult prisons. Do the Government intend that that should end, and if so, when? Are other sorts of provision intended? At present, young people can be detained in any place determined by the Secretary of State.

Do the Government take the view that all young persons convicted of serious offences should have their cases reviewed when they come of age, with no automatic presumption that they should continue in custody indefinitely? The most famous case—or the most notorious—was the James Bulger case. Rightly, in my view, the authorities considered that the offenders' sentences should be reviewed when they reached 18. The way in which child offenders are treated in adult life should depend on how they respond to their treatment and punishment when in custody.

We should not wreak vengeance on adults for sins that they committed as children. We should take a rehabilitative and forgiving view, however difficult it may be, if children who committed offences do not pose a risk to the public once they reach the age of majority. Their cases should be reviewed, and if it is considered safe to release them, they should be able to make a fresh start in adult life. We should start with the presumption that they should be treated differently from those who commit such crimes as adults, who must clearly take full responsibility for their actions. What is the Government's policy on those issues?

Joan Humble (Labour, Blackpool North and Fleetwood)

I shall pick up on some of the points made by the hon. Gentleman. In my previous incarnation, as chair of Lancashire social services, I was responsible for interviewing and reviewing the cases of young people in secure accommodation. I visited many local authority secure accommodation centres throughout the country. Most of them were operated in the best interests of the young people and undertook the sort of rehabilitative work that has been mentioned this morning.

I specifically want to pick up on the point that the hon. Gentleman made about young people reaching the age of majority. I recall the case of one young man who had committed a serious offence and was in secure accommodation as a result. If he had been an adult, he would have been in an adult prison, his sentence would have been coming up for review and he would probably have been allowed parole or his case would have been otherwise reconsidered. However, because he was in secure accommodation and had reached the age of 18, he was automatically transferred to an adult prison.

I made representations on behalf of that young man, because he had responded very positively during the years that he spent in secure accommodation. I had regular meetings with him, and the staff wrote reports

on him, but the system did not seem to see him as a young man or consider his needs. He was automatically transferred to an adult prison, where he was unlikely to have continued to receive the same support.

We should look at the continuum of care offered in secure accommodation. We should consider the circumstances in which young people are put in prison at the age of 16 or 17—but, just as important, we should consider what happens when they are transferred once they reach 18.

Humfrey Malins (Conservative, Woking)

I shall make two brief points. First, subsection (3) is badly drafted. It would be much better if it said, in cases not falling within subsection (2), that the court must impose a sentence of detention for public protection ''if satisfied that no other disposal is appropriate.'' At present, it is terribly long-winded. Secondly, what is the word ''legally'' doing in the second line of subsection (3)? It seems to envisage not only that the court can deal with the defendant legally, but that it can do so illegally.

Hilary Benn (Labour, Leeds Central)

I shall deal first—

Mark Francois (Conservative, Rayleigh)

Alpha and omega.

Hilary Benn (Labour, Leeds Central)

The last shall be first. Good questions have been asked. I shall try to answer the problem that was spotted, with his usual eagle eye, by the hon. Member for Woking. I am sure that it is of considerable import—

It being twenty-five minutes past Eleven o'clock, The Chairman put forthwith the Question already proposed from the Chair.

Question agreed to.

Clause 206, as amended, ordered to stand part of the Bill.

The Chairman then proceeded to put forthwith the questions necessary to dispose of the business to be concluded at that time.

Clause 207 - Extended sentence for certain violent or sexual offences: persons 18 or over

Clause 208 - Extended sentence for certain violent or sexual offences: persons under 18

Standing Committee B

Clause 217 - Meaning of ''fixed-term prisoner''

David Heath (Liberal Democrat, Somerton and Frome)

I wonder whether the Minister could enlighten me. The definition of ''prison'' in clause 217(2) is

''any place where a person serving such a sentence is liable to be detained.''

What do the words ''is liable to'' mean in that context? Why does the clause not refer simply to a place where a person is detained under the terms of clause 217(1)?

Graham Allen (Labour, Nottingham North)

This part of the Bill on the release of prisoners on licence is welcome and the Government are doing precisely what is needed. However, although what the clause means will be evident to judges and lawyers, unfortunately, the public are missing out yet again. We are in danger of snatching defeat from the jaws of victory because having introduced the positive concept of custody plus, we are putting it to the public as imprisonment minus. We all seem to agree on the concepts in the chapter relating to the release of prisoners on licence, but I wonder whether we could not phrase the provisions in such a way that would enable the ordinary member of the public to understand them.

It is the old cliché; offenders get 12 months but are out after six. The chapter turns that round so that an offender will get six months but must keep his nose clean for another six. In their wording, the Government have failed to recognise that they need to change the public's perception. I tabled amendment No. 919, which, sadly, was not selected, but in which I defined ''sentence'' as the term of imprisonment, plus that which was served in the community or on licence. Until the terms are clear, not only for the Committee and for judges but for the public, the sentencing process will lack credibility. I ask my hon. Friend the Minister to bring the public's perception in line with reality, so that a member of the public down at the Dog and Duck does not have to engage in judicial archaeology to understand why an individual leaves prison after six months. We can explain that honestly, and I hope that the Minister will do so. Otherwise, instead of calling the chapter ''Release of prisoners on licence'', we should call it ''The dishonest sentencing section.'' We need to restore that honesty, otherwise we shall be talking to ourselves and not involving members of the public in their criminal justice system.

Hilary Benn (Labour, Leeds Central)

Let me say to the hon. Member for Somerton and Frome (Mr. Heath)

that if the word ''liable'' was not used, it would suggest that the definition depended on the offender being present in prison. If we stop to think about it, we will realise that that is not always so—for instance, when offenders are released on temporary licence. That is why the word is necessary. The definition of a fixed term of imprisonment encompasses all those serving a sentence for a determinate term and those under the age of 18 serving either an extended sentence for certain violent or sexual offences or a sentence of detention for non-dangerous offenders convicted of a serious offence.

I was much taken by the phrase ''judicial archaeology'' used by my hon. Friend the Member for Nottingham, North (Mr. Allen). For good reasons, the Committee has often been engaged in that. I am at one with my hon. Friend in wishing the public to have a better understanding of how sentencing works. That is why, in those clauses already agreed to, we made provision for the court to explain exactly what a sentence means.

My hon. Friend touched on an important point when speaking of the difference between sentence and custody. People are confused about it. The sentence is the entire period; it consists of the time spend in custody and the period on licence. However, as my hon. Friend knows, if people fail to adhere to their licence conditions, they are liable to recall, which means that they will have to serve the rest of the sentence in custody. I agree with him that the public need a better understanding of how the system works.

I hope that the requirement for the courts to explain sentences and how they work, and some of the other things that we debated earlier such as the work of the Sentencing Guidelines Council, will begin to move us towards what my hon. Friend wants to achieve, with which we all agree—namely, a better understanding of what happens, and why and how it happens.

Question put and agreed to.

Clause 217 ordered to stand part of the Bill.

Clause 218 - Power of court to recommend licence

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 908, in

clause 218, page 120, line 17, leave out 'particular' and insert 'reasonable'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following amendments:

No. 724, in

clause 218, page 120, line 19, at end insert

'and shall tell the offender when passing sentence what conditions are to be recommended and shall give the defendant an opportunity to make representations.'.

No. 907, in

clause 218, page 120, line 21, leave out 'have regard to' and insert 'consider in full'.

David Heath (Liberal Democrat, Somerton and Frome)

Under the amendment, when passing sentence, a court may recommend to the Secretary of State reasonable conditions that could be included in any licence that is granted. However, that does not

exclude the possibility of particularity. I hope that the conditions imposed would not be general but specific to the prisoner. It is important, however, that the conditions can reasonably be complied with by the offender. Otherwise, they would presage an automatic return to custody. I would be entirely satisfied if the Minister were to tell me that the condition of reasonableness could be applied in another way. I am not sure that it is, and the amendment therefore seems reasonable. It makes clear the context in which the conditions would be set.

Amendment No. 907 is self-explanatory. It would apply when the Secretary of State was exercising his powers under section 229(3)(b), as it would allow him to introduce other conditions from time to time. It cannot be right that the Executive consider it in a vacuum, outwith what is already the sober consideration of the court. It is self-evident that the Secretary of State, in applying those conditions, must properly have regard for the conditions originally applied by the court. It is a matter of emphasis and degree rather than a change in meaning of the terms of the clause, in that it would be made explicit that the Secretary of State must consider as a matter of overriding importance the views of the court in the first place, rather than any discretion that he might accrue to himself. That brings us back to the central issues of the Executive's role in sentencing, and its tendency to overreach itself in that respect. We shall come back to that argument later, and we have touched on it already. The amendment is the very smallest of nudges in the direction of the discretion of Secretary of State in taking fully into account the views of the court at the first point of sentencing.

Graham Allen (Labour, Nottingham North)

It tells you something about me, Mr. Illsley, that in my diary I carry not only a picture of my wife and daughter, but a dog-eared piece of The Guardian that I ripped out about two years ago, because the facts it described stunned me and I felt that I could not be without it. It says that

''the 100,000 hard cases share identifiable problems which can be tackled. These problems include the fact that half are under 21; nearly two-thirds are hard drug users; more than a third were in care as children and half have no school qualifications at all.''

The quotation ends rather cryptically:

''Mr. Blair has told colleagues that the figures are 'shocking'.''

I shall not delay the Committee unduly on the matter, except to say that when we are considering conditions that should be attached to licences we should surely examine some of those root causes of crime and what the courts can do to tackle them. That is why I tabled amendments Nos. 109 and 110, which were not called, but which ask the court to take into account factors such as

''the attainment of emotional maturity, social skills, and in the case of parents, parenting skills'',

and

''the attainment of educational and employment qualifications.''

If the court does not bear such matters in mind as part of the conditions that are attached to a licence it is, in my view, being negligent, because it is just recycling

offenders through the courts system, rather than tackling the root causes.

The hon. Member for Woking (Mr. Malins) probably has more experience of daily dealings with such people than any of us, and must have come to the same conclusion as I have. Many of these people are poorly qualified, inadequate, unsuccessful and lacking in emotional intelligence, if not basic intelligence. One way to crack the recycling of offenders is to break that circle and give those offenders something that they can grasp. That is why I raise with the Minister the issue of ensuring that the courts, in deciding on licensing conditions, pay more attention than is currently provided for in the Bill to what they can get offenders to aspire to and get better at, so that they can be more adequate people, make more of a contribution and come out with qualifications.

Humfrey Malins (Conservative, Woking)

Let me say how much I agree with the hon. Gentleman in relation to his comments about the problems that some defendants awaiting sentence face. He is right to paint the picture he did—it is extremely accurate.

Amendment No. 724 would require the court to

''tell the offender when passing sentence what conditions are to be recommended and . . . give the defendant an opportunity to make representations'',

and is no more than a probing amendment. It has not hitherto been the practice of the judiciary to talk much about licences, which have been an afterthought. Perhaps that has been a mistake, inasmuch as hitherto the judiciary has simply said, ''Bloggs, you will serve 18 months. Half of that will be served and after that you will be released on licence, but if you muck around under licence you will go back again. End of story; bring me the next case.''

That might not be good enough. I understand what the Government are saying. However, will the judge not require much extra information about the defendant before passing comment about licence conditions? Will he require separate reports? Will there be any cost implications about which we should be concerned, and would it not be a good thing for the judge to explain to the defendant in simple language what conditions he is going to recommend, just in case the defence or its legal team has anything to say about the conditions? That is the only reason for my probing amendment. I also note that the clause refers to the fact that the judge ''may'' as opposed to ''must''. Am I right in thinking that that gives the judge an option that might or might not be exercised depending on the mood of the judge and the suitability of that position for that judge on that day?

Hilary Benn (Labour, Leeds Central)

I, too, concur with the comments of my hon. Friend the Member for Nottingham, North about the importance of addressing the circumstances that give rise to offending. In many of the prisons that I have visited in my present capacity, I have seen good programmes at work. I think of one in particular—talking of parenting—that I saw recently in Wandsworth prison. It had had a remarkable impact on the offenders in getting them to think about their relationships with their families in a way that, they

hoped, would change the way in which they lived their lives when they came out of prison. The hon. Member for Woking is right in divining the purpose of the clause. Some courts do pass comment on what they think would be appropriate licence conditions. There is no formal mechanism for that to be communicated. He is also right that it is a permissive power. That is why the clause says ''may''—the judge decides whether it is appropriate to pass comment depending on the circumstances of the case. I share the objective of the amendment, which is to ensure that there is communication with the offender and to allow for representations to be made, but I think that we can achieve it administratively.

We anticipate that any court recommendation as to licence would form part of the court's reasons for sentence, and would therefore be heard by the offender in open court. That would be the most effective way of ensuring communication with the offender. However, it would not be appropriate for the offender to make representations to the court against such a recommendation at that point, because it would be only a recommendation, which the Secretary of State must have regard to, but it might not, in the end, form part of the offender's release package. By the time the offender was released—that could be years down the line, depending on the length of the custodial sentence—the risks and needs might have changed sufficiently to render the original court recommendation irrelevant. For example, the judge might have recommended as a licence condition that the offender should keep away from person X. That person might, sadly, have passed on.

Many circumstances could change, which would mean that it was not sensible to make representations at that point. Nevertheless, the offender would be perfectly entitled to speak or write to his probation officer to pass comment as to whether the court's recommendations were as acceptable, and to give reasons. For a determinate sentence of more than 12 months, that could form part of the probation service's consideration of appropriate licence conditions, which must be sent to a prison governor four weeks before the offender's release.

For an offender serving any part of a sentence requiring the Parole Board's decision on release—an extended sentence, imprisonment for public protection, which we were debating this morning, and life sentence—there will be formal opportunities for the offender to make representations as to the licence conditions, because the probation service prepares and sends the parole dossier, which includes any prior representations made by the prisoner against the court's recommendations to the Parole Board. The recommendations must be disclosed to the offender and the Parole Board will hold an oral hearing that the offender will attend, so there is an opportunity before and at the oral hearing to make representations. I hope that that meets the objective of the hon. Member for Somerton and Frome.

Amendment No. 908 would

''leave out 'particular' and insert 'reasonable'.''

I am not attracted to it for two reasons. One, the insertion of ''reasonable'' could be taken to suggest that somehow courts might be inclined to impose unreasonable conditions, whereas courts have a duty always to act reasonably. Secondly, it would lose particularity; it would take away the sense that courts should be specific in their recommendations. That is what the clause tries to capture.

Amendment No. 907 suggests that we

''leave out 'have regard to' and insert 'consider in full'.''

However, subsection (3) makes it clear that the court's recommendation is not part of the sentence passed on an offender. In one sense, changing ''have regard to'' to ''consider in full'' is not enormously significant, and considerable time may have elapsed before the Secretary of State considers a court's recommendations when making his decision on the appropriate licence conditions. In such circumstances, requiring the Secretary of State to ''have regard to'' the court's recommendation—time might have altered circumstances considerably—is reasonable.

David Heath (Liberal Democrat, Somerton and Frome)

I am most grateful to the Minister for his response. I intimated in my earlier remarks that I felt that amendment No. 907 did not make a huge difference to the meaning of the clause. With regard to amendment No. 908, I did not want to lose the notion of particularity that the Minister took pains to explain, and I accept that the amendment could lead to such an interpretation. A court could make conditions that are entirely reasonable in every respect apart from the fact that an offender will be unable to keep to them for reasons beyond his control. That concerns me. However, it is not a major difference between us because, as the Minister says, one expects courts to behave reasonably when imposing sentence, and I am sure that they would take such a view not when setting conditions but when making recommendations about conditions. That is in any case tempered by the judgment when the conditions are applied.

Graham Allen (Labour, Nottingham North)

I thank the Minister for his warm words about being tough on the causes of crime while an offender is in custody or on licence. I look forward to those warm words being translated into cold print, perhaps in the other place.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 218 ordered to stand part of the Bill.

Clause 219 - The Parole Board

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 909, in

clause 219, page 121, line 10, leave out subsection (5).

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss amendment No. 910, in

clause 219, page 121, line 14, leave out subsection (6).

David Heath (Liberal Democrat, Somerton and Frome)

This is an opportunity for the Government to be absolutely clear about their intentions towards the European Court of Human Rights in the case of Stafford and compatibility with human rights legislation, and towards the House of

Lords in the case of Anderson. There was a clear indication that the Home Secretary's immediate reaction to those judgments was to seek to reintroduce the Home Secretary's role in dealing with the Parole Board on early release. It is not explicit in the Bill that it will do that job. There is fuzziness in the Government's approach as to whether the Bill is the vehicle that they have chosen—as they would say—to rectify that omission. We would say that an anomaly in the present situation will continue. It is entirely sensible to ask the Minister whether he believes that this is the vehicle to rectify the omission. If it is not, when does he intend to rectify it? Moreover, why has he not used the Bill to do so, given the clear intention that the Home Secretary expressed after the judgments in question were made?

Subsections (5) and (6) would give the Home Secretary a degree of control over the Parole Board. It is at least debatable that that degree of control would be in excess of that which is compatible with human rights legislation. The clause might be subject to further challenge if it were found that that power had been used inappropriately.

First, the Minister must satisfy the Committee that what he is doing deals—or does not deal—with the situation. Secondly, if it is not intended to deal with it, does it not give the Home Secretary an inappropriately strong role in the Parole Board's proceedings? If the Minister does not believe that to be the case, why does he believe that? Why does he believe that for the Home Secretary to exercise that power in future would not fall foul of precisely the same legal findings of incompatibility as his previous intervention?

Hilary Benn (Labour, Leeds Central)

My right hon. Friend the Home Secretary indicated after the Stafford judgment that he intends to review the directions on the release of prisoners serving life sentences, with a view to strengthening them. The answer to the hon. Gentleman's question is that there is no legal impediment to the Home Secretary setting down directions, as long as they are compliant. I should point out that the Home Secretary is responsible for criminal justice policy, and is accountable to Parliament for all aspects of that policy. He is also, ultimately, responsible for the supervision of all offenders on licence and answerable to Parliament in respect of their release arrangements. It is therefore wholly reasonable that he should be able to set down the considerations that are to be taken into account when determining whether to grant early release.

However, that does not give the Home Secretary unfettered discretion to set down excessive or unreasonable criteria that must be met before release can be granted. All directions must be compliant with article 6 of the Human Rights Act 1998.

The rules that the Home Secretary may make have no influence on the determination of applications for early release. They offer a procedural framework within which the Parole Board works when it sits in a quasi-judicial capacity in the form of oral hearings. Although the Home Office draws up the rules, the Parole Board is always fully consulted.

Therefore we accept entirely that directions, in order to be lawful, must be compliant with article 6.

David Heath (Liberal Democrat, Somerton and Frome)

That was not an entirely convincing argument.

Hilary Benn (Labour, Leeds Central)

It was not bad.

David Heath (Liberal Democrat, Somerton and Frome)

I was listening carefully, and I hoped that the Minister was going to make a more clinching point than simply saying that the proposal was not necessary. I remain to be convinced, as, I suspect, does my hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes), that the Government are addressing the issues raised by the judgments, or that the power to intervene is necessary bearing in mind the need for the independence of the Parole Board in exercising its functions. Having said that, we are likely to return to the matter. Therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 219 ordered to stand part of the Bill.

Schedule 15 - The Parole Board: supplementary provisions

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 726, in

schedule 15, page 224, line 8, after 'held', insert 'part-time or full-time'.

The schedule addresses the membership of the Parole Board. The amendment is a minor one; it sets out who should be members of the board. It would be wise to widen the provisions of paragraph 2(2)(a) to include a person who holds or has held judicial office part-time or full-time. I say that because some distinguished silks have never wanted to take full-time judicial office. They might enjoy their lives as silks so much that they do not want to do so. When they retire they are just as distinguished as many who hold full-time judicial office. They might have sat part-time over many years and be just as experienced as many full-time judges. It might be worth considering part-time judicial office holders as well as full-time ones when choosing Parole Board members. This is a harmless amendment. I am not in much doubt that it will find favour with the Government.

Hilary Benn (Labour, Leeds Central)

The amendment is so harmless that the Bill already provides for the proposal. The schedule provides for both full-time and part-time members of the judiciary to be appointed as members of the Parole Board. Indeed, on occasion, recorders have been appointed, although at present the board's members are either High Court or circuit judges. The situation that the hon. Gentleman wants to facilitate has existed in the past and the Bill's wording will permit it in the future.

Humfrey Malins (Conservative, Woking)

I am most grateful. This has been a worthwhile debate, not least—I am desperately thinking of a reason why it has been worth while—because people outside the building read the reports of our proceedings. Those who might have found the provision unclear—foolishly, because it is so obvious—would not be unclear now. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 15 agreed to.

Clause 220 - Crediting of periods of remand in custody:

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 725, in

clause 220, page 122, line 3, leave out subsection (5).

This deals with periods of remand in custody. I want to probe the Minister on the point. When it comes to sentencing, courts sometimes have huge difficulties in assessing whether remand periods in custody should be taken into account. Subsection (5) requires it to be stated in open court the number of days for which the offender was remanded in custody and the number of days in relation to which the direction is given. There are problems with that in practice.

It is not uncommon for a defendant to come before the court remanded in custody from different courts in connection with four or five different matters at once, and for the court to be totally unable to unravel the true position. A sentence of a certain number of months might be passed, but it be difficult for the court to comment in public on what account it took of time spent on remand in custody, because the court cannot be aware of all the custodial provisions that have applied to a defendant before, or even of those current at the time of sentence. There is a real nuts and bolts, practical problem, and if the Minister knows a simple way of calculating periods of remand, I should be grateful to hear it.

David Heath (Liberal Democrat, Somerton and Frome)

I understand the hon. Gentleman's point. The problem seems to lie in the fact that subsection (5)(a) is expressed in such absolute terms. It is not wrong for the court to make clear the process of calculation that it used to make the direction. It is not inappropriate, therefore, that it should indicate the number of days in custody that it has considered in making its recommendations, but whether it is an absolute term or the number of days for which the offender was remanded in custody for that particular offence is a totally different matter. It seems that it must be possible to find a common course between the intention of the clause and the difficulties highlighted by the hon. Gentleman. Perhaps the Minister would consider a slight variation in the terms of subsection (5)(a).

Hilary Benn (Labour, Leeds Central)

The clause re-enacts, with some amendments, provisions in the Powers of Criminal Courts (Sentencing) Act 2000. It provides for time spent in custody on remand to count towards time that would otherwise be spent in custody post sentence. I accept the point made by the hon. Member for Woking, but the clause aims to simplify provisions in the Criminal Justice Act 1967, the Criminal Justice Act 1991 and the Powers of Criminal Courts (Sentencing) Act 2000 for calculating remand time because, as we have heard, the current framework has caused difficulties in translating the sentence of the court into a period of custody.

Subsection (3) requires the court to direct that the number of days for which the offender was remanded in custody will count as time served by him as part of his sentence, subject to the exceptions listed in subsection (4). Subsection (4) enables the court to

disregard the provisions in the clause where the Secretary of State has made rules regarding specific situations or where the court believes that it is just in all the circumstances to do so. Where a direction is not given, or is given but falls short of the full period spent on remand, subsection (6) requires the court to state openly its justification. I hope that, in those circumstances, the clause will go some way towards meeting the problems to which hon. Gentlemen have referred.

Humfrey Malins (Conservative, Woking)

I hope so. I do not want the matter to slip through because we have not properly scrutinised the clause. I take it that the Minister is saying that, when the court decides not to state the number of days for which the defendant was remanded in custody that will count towards his sentence, it will have absolute discretion not to come out with this diatribe if it does not wish to do so. I hope that that is the case and that the court will have the fullest possible discretion, because, otherwise, impossible situations could arise.

For example, someone is arrested for an offence on 7 October and kept in custody for seven days—or even for one day. He then goes before the court and is remanded in custody for a week. A week later, there is a successful bail application, and the defendant is released on terms. Then, as often happens, he commits three different offences in the jurisdiction of three different courts. He is brought back to court and pleads guilty forthwith at the court at which he had hitherto appeared and, through his lawyers, tells the court that he is appearing at another court next Tuesday and has not decided which way to plead, and at another on the Wednesday, where he thinks that he will be remanded in custody, although he is not sure. The sentencer then puts off the case for pre-sentence reports. By the time another tribunal has heard the case, a further month later, it is the devil's own job to unravel which periods of custody are relevant. Such matters are much better dealt with outside the court. However, if the court has the discretion to which the Minister has referred, I am pleased to hear it.

Hilary Benn (Labour, Leeds Central)

I am happy to confirm that the court has such discretion. That is the purpose of subsection (4)(b).

Humfrey Malins (Conservative, Woking)

In that case, I am surprised that it says that the court must pronounce, subject to a discretion that it does not want to pronounce because it does not feel like it. There seems to be an inconsistency: either it should pronounce or it should not—in which case the clause would be unnecessary. The point has been made, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 220 ordered to stand part of the Bill.

Clause 221 - Effect of direction under section 220

Clause 223 - Persons extradited to the United Kingdom

David Heath (Liberal Democrat, Somerton and Frome)

To parade my ignorance, will the Minister explain subsection (3)? What is the position of people who might be in Crown dependent territories, who are not covered by the category of British overseas territory? Are they included in the United Kingdom if they are brought back for trial from the bailiwicks of Guernsey, Jersey or the Isle on Man? I believe that the Isle of Man is not part of the United Kingdom. If the Minister can confirm the situation, my mind will be at rest.

Hilary Benn (Labour, Leeds Central)

I shall take advice on the question raised by the hon. Gentleman and respond to him in writing.

Question put and agreed to.

Clause 223 ordered to stand part of the Bill.

Clause 224 - Duty to release prisoners

Graham Allen (Labour, Nottingham North)

I continue the campaign for honest sentencing. Subsection (3)(a) seems to contradict itself. In defining ''the requisite custodial period'', the provision says that

''in relation to a person serving a sentence of imprisonment for a term of twelve months or more'',

that means one half of his sentence. Rather than stating that there will be a 12-month sentence and then that the person will serve only six months, why are we not honest? Why do we not say that they will serve six months? If the other six months were served under the licence provisions, people would not say that those sentenced to 12 months were being let out after six, but would instead realise that they had served their sentence, that they would be constrained under licence for a further six months, and that if they broke its conditions they would go back into custody. Then we would genuinely have custody plus rather than imprisonment minus.

We all agree that that is the right way to proceed but the public perceive that we are somehow letting people out early. Instead, we should impose onerous constraints on such people once they have served an appropriate sentence. I think that we would all agree that, in those circumstances, that should honestly and actually be six months.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am very keen that statements should be made in court that people can understand. I look at it slightly differently from the hon. Gentleman, but wish for the same effect. I have said before that the

benefit of the Government's policy is that, in effect, sentences will have two halves—an inside half and an outside half. We need to make it clear what judges should say.

There should be a formula, so that whatever else they might say about the crime and the trial, judges will have to say something that makes it clear that the sentence is in two halves—for instance, they may say, ''You will be sentenced by the court to three years. Half of that time will be spent inside, and the second half will be spend outside on licence; you will therefore expect to be released on such and such a date. If you reoffend after that, you can expect to go back inside.''

I do not think that there is very much between the hon. Member for Nottingham, North and me, but I am equally clear that sentencing has been thoroughly confusing for some years, and it is not helpful.

We shall soon come to discuss home detention curfews, a subject that raises separate but perfectly proper and important issues. The Government know that we are generally supportive. I am keen that the Minister should let judges know, if he has not done so already, that he is willing to talk to them about a formula that makes clear what the sentence is, the minimum time inside and the fact that coming out again is not the end of the sentence, but part 2 of the sentence.

The Minister knows well that the logic of doing that is strengthened because it would also allow judges to say, with more credibility, ''You will get a sentence of custody, plus a sentence that will be served in the community. Conditions will be attached to the sentence, and if those conditions are breached, you will lose your liberty.'' That would be consistent for non-custodial and custodial sentences.

David Cameron (Conservative, Witney)

I have sympathy with what was said by the hon. Members for Southwark, North and Bermondsey and for Nottingham, North. My new clause 10, which was not discussed, would have been honesty in sentencing writ large. It would have said that someone sentenced to one, two or three years in prison would have to serve that time—but with a little time off for good behaviour because prison governors need that incentive so that they can keep order. Although that is the ultimate in honesty in sentencing, it has the disadvantage that it takes no account of the importance of post-release supervision and probation.

A case can be made for what the hon. Member for Southwark, North and Bermondsey proposed, which is that when sentencing a prisoner, the judge should tell him, ''You will be sentenced to two years in prison. That means that you cannot be released until two years have passed, less a little time off for good behaviour. In addition, you will be sentenced to a certain time of probation and supervision.'' It should be made clear in court. I do not see why we cannot achieve that.

If there is one thing that undermines people's confidence in the criminal justice system, it is the feeling that time after time sentences are handed down but people are released halfway through them. It would be a huge breakthrough if the sentence read out

in court was accurate and took account of time off for good behaviour and the community sentence.

In response, the Government will advance two arguments, which I shall try to pre-empt. First, they will ask what would happen if judges gave sentences of two years, and two years meant two years, not one year. They will say that a huge cost would be incurred because people might be kept inside for longer, but I do not think that that would happen. Once we have honesty in sentencing, sentencers will think clearly and mean what they say.

Graham Allen (Labour, Nottingham North)

One role of the sentencing council could be to bring that issue to the party. It could make it clear to judges that the middle range of sentences is right and appropriate, and that they need not pitch sentences too high in the belief that the real sentence will end up in the middle range. The council could help us bring clarity to the issue.

David Cameron (Conservative, Witney)

The hon. Gentleman is absolutely right. I have read the comments that my hon. Friend the Member for Woking made when the issue was debated at length in an earlier sitting. He said that sentencers were sometimes quite confused about whether four years meant two years or four years. If sentencers are confused, what about the general public and victims of crime?

The second argument that will be gnawing away at the Government is that sentencers who react logically to the proposals and set sentences that are half as long will look weak, but I do not buy that argument either. The public will be much more convinced by real sentences. If judges sentence someone in open court to two years in prison plus two years probation, and two years in prison means two years—less a little time off for good behaviour—that will be an enormous breakthrough.

The hon. Members for Nottingham, North and for Southwark, North and Bermondsey and I are not asking the world—we are asking for a logical, sensible addition to custody plus. If the Minister could deliver that, it would be hugely worth while.

Hilary Benn (Labour, Leeds Central)

I agree entirely about the need to explain how the Bill's sentencing provisions will work. Understandably, the hon. Member for Witney (Mr. Cameron) took the opportunity to advance the arguments that he would have advanced had he been able to speak to his new clause, which dealt with a different sentencing framework. He and my hon. Friend the Member for Nottingham, North spoke of the need for clarity, and we are at one on that. That is precisely why clause 157, which is headed

''Duty to give reasons for, and explain effect of, sentence''

says that the court

''must explain to the offender in ordinary language . . . the effect of the sentence''.

In passing, I wonder whether the words ''ordinary language'' have ever appeared in statute before—that would be an interesting test to set ourselves. We agreed to include the phrase in statute for what I think is the first time precisely to address the argument made by my hon. Friend the Member for Nottingham, North and others. With great persistence, application and

dedication, he argued that the courts should explain what they mean when they pass sentence. That said, the custodial period of the sentence may resume after release at the halfway point if someone fails to abide by the licence conditions that are placed on him. He will go back into custody and could serve the rest of the period in prison.

I am sure that it will not be beyond the wit of those involved to agree a recommended form of words to achieve the objective laid down in clause 157. Having set out the sentencing framework, we all agree that that it should be explained in such a way that everyone understands how it will work.

David Cameron (Conservative, Witney)

It is welcome that clause 157 refers to ''ordinary language'', but that ordinary language is not in the clause. The sentencer should say how much of the sentence will be served in prison and how much out of prison.

Hilary Benn (Labour, Leeds Central)

Let me look at the wording. The clause says that the court

''must explain to the offender in ordinary language . . . the effect of the sentence.''

That is Ronseal wording and is very clear. The court must explain the impact that the sentence will have on him or her. In that way, victims, witnesses, others in court and people who subsequently read about the case will understand exactly what the sentence means. They will understand how much time the offender will spend in custody and on licence, which might be affected by whether he abides by the licence conditions and the impact of home detention curfew.

David Cameron (Conservative, Witney)

I hear what the Minister says, but does not clause 157 maintain the fiction of the current situation, that relief is given halfway through the sentence? That is what we should attack. One year should not mean six months, yet that impression will still obtain after the Bill has been passed. That is the missed opportunity that we have been talking about.

Hilary Benn (Labour, Leeds Central)

It is not a fiction: it is what the statute will provide, if we agree to clause 224, which says that the requisite custodial period means what is set out in subsection (3)(a). I entirely accept, however, that we want the public better to understand how a sentence is made up, because I reiterate that a sentence is not solely a custodial period.

Graham Allen (Labour, Nottingham North)

Will the Minister keep the wording under review, and if he feels that it is appropriate, suggest a form of words that makes him even happier than that which is currently in the Bill? The Bill is drafted by excellent, competent officials in the Department and parliamentary counsel. We bring to the party the eye of a constituency Member of Parliament. We know what will play in the constituencies and how best to explain what we are trying to do to our constituents. I ask him to keep an open mind on whether there might be a better form of words than that which he is defending.

Hilary Benn (Labour, Leeds Central)

I am happy to defend the wording, simply because it achieves the purpose. I am happy with it and hope that, in due course, my hon. Friend will come to share my sense of happiness.

The proof of the effect of clause 157 will be the explanations given in court, as courts carry out the duty imposed on them by statute, and that issue will be dealt with in guidelines and training. I entirely accept the point that we must ensure that the clause works in such a way that people are given proper explanations of what sentences mean.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister will reinforce the words used in clause 157 if the provision is termed, in algebraic terms, not as a = b - c, but as a = b + c. That is the simple equation being put to him by hon. Members.

Hilary Benn (Labour, Leeds Central)

I rise, but I am unsure whether I have much more to say. I simply reiterate that the requirement to explain the sentence will work only if it is done in the way that the hon. Gentleman suggests, namely that the sentence consists of a + b. With respect, it is a matter not of further tweaking the wording in clause 157, but of how the requirement to give an explanation of the sentence works in practice in the court, which is an issue for training and guidance.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I think that the Minister has got the message, but I think that something other than clause 157 may be needed. It describes the method of giving sentence. It sets out the way in which the judge should—and the words are happy in a sense—

''in ordinary language and in general terms''

explain the reasons for the decision. We are asking for something that is more honest to the commentator—the local newspaper reporter—and the family of the victim. Instead of an approach that names the higher figure denoting the length of the sentence, and that may or may not get across the message that the state will have a duty to release the person some way through the sentence, we want things to be expressed the other way round. There should be honesty about the fact that the sentence is in two parts.

The difference would be not only a matter of presentation. The approach would be clear, and would therefore comply with the clause 157 rule, but it would also be consistent. I expect that some advisers on criminal justice policy, penal policy and criminology would say, ''No. It is important that the sentence should be set out together with the duty to release on licence.'' I know the argument, but we need to bite the bullet and say, ''We are changing that. The sentence has two parts: the first part inside and the second outside.'' That would not be a sentence with an option to disappear out of the gates—it would be a two-part sentence.

I accept that, if we could achieve that, the formula might, as the Minister says, not be a matter to be set out in the Bill. However, I think that we would all be satisfied if we could agree on the formula before the Bill is enacted. It is unnecessary for the relevant part of the formula not to be standardised by then. That would not preclude the judge from explaining the implications of sentencing in a particular case, and it would not preclude him or her from explaining, in

ordinary language and general terms, ''I have decided on this sentence because the crime that has been committed is a terrible one, of a sort that has been happening in this village for three years—everyone is doing it.'' Those are different issues. If we agreed on the core formula by the time the Bill was enacted, that would add great clarity, which has not so far been present.

David Cameron (Conservative, Witney)

I agree with the hon. Gentleman. If we can get the wording that is to be read out in court right, our constituents will be much happier about the sentencing process.

I may be missing something, but I cannot see in clause 157 or elsewhere any requirement for the court to explain—as I think it should—the fact that some people may be released even before the halfway point in their sentence, under the home detention curfew or under provisions for even earlier release. That has caused much disquiet. Often people who are sentenced to a year in prison do not even serve six months, but just a few weeks, because they are sent home on curfew. The provision that the sentencer must explain

''the effect of the sentence''

is very vague. Elsewhere in the Bill there is great detail. Am I right in thinking that there is no provision anywhere requiring the court to explain that a person might be released even earlier than halfway through the sentence?

Hilary Benn (Labour, Leeds Central)

I do not agree that that clause is vague in requiring the sentencer to

''explain . . . in ordinary language . . . the effect of the sentence''.

That is crystal clear. However, hon. Members and I are at one in our objective. I undertake happily to reflect on the suggestion that it would be helpful at some point to see sample forms of words that might be used. Clause 157 provides the means to achieve our shared objective and requires the court to explain the effect of the sentence in ordinary language. I can understand the anxiety of hon. Members of all parties to see what that might mean in practice.

Question put and agreed to.

Clause 224 ordered to stand part of the Bill.

Clause 225 - Power to release prisoners on licence

Hilary Benn (Labour, Leeds Central)

I beg to move amendment No. 554, in

clause 225, page 124, line 33, leave out 'and' and insert 'to'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss Government amendments Nos. 710, 556, 557, 559 to 563, and 567.

Hilary Benn (Labour, Leeds Central)

The amendments, with the exception of No. 567, amend the provisions for home detention curfew to accommodate intermittent custody. As currently drafted, the clause does not reflect the fact that during intermittent custody the defendant does not serve the custodial and licence periods in continuous, single blocks of time. Given that offenders serving intermittent custody will have been assessed as suitable for the sentence, which involves regular periods on licence in the community, it is likely

that they will also be suitable for release on home detention curfew, so the provisions for home detention curfew must be amended to apply to intermittent custody.

Amendments Nos. 554, 710, 556, 557 and 559 rephrase terms representing portions of an offender's sentence into numbers of custodial days left to be served. Amendments Nos. 560 and 561 ensure that the power to amend those portions by order refers to the new intermittent custody provisions. Amendment No. 562 omits a reference to subsection (3)(i), because it has been moved to subsection (4)(b) by amendment No. 560. Amendment No. 563 adds new definitions for terms used in calculating home detention curfew for intermittent custody.

Amendment No. 567 relates to the curfew conditions of home detention curfew licences. In the case of other prison sentences in which home detention curfew is granted, the curfew condition remains in place until the date the offender would have been released if he or she had not received home detention curfew. The wording is not appropriate for intermittent custody, with its intermittent licence periods. In that sentence, an offender will be subject to home detention curfew for the number of days equal to the number of custodial days that he or she would have had left to serve if they had not been released on home detention curfew.

As an example, to explain to hon. Members, who, I am sure, are following carefully, take an offender who has been given 60 days of custody within a 40-week sentence of intermittent custody to be served at weekends. If he is given home detention curfew, he will serve three quarters of that—45 days—in custody, which leaves 15 days. When he is released on his 45th day he will serve 15 days on home detention curfew. Following that, he remains on intermittent custody licence for the remainder of the 40 weeks. The intention is that the offender serves his home detention curfew in a single block following his release on the final day of custody, which is a much more sensible way of trying to accommodate home detention curfew and intermittent custody than trying to weave the home detention portions in between the periods of intermittent custody.

In other words, the home detention is saved up and put on the end, so that things are much clearer. One of the great advantages of that is that one would not have to put tags on and off during the sentence. There would be one period during which someone on intermittent custody would serve on the tag. That would be at the end, after the days had been added up, as in the example that I gave. I hope that that is clear.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister could not have been clearer in his exposition. Consolidation of sentences is sensible and we all applaud it.

Has the Home Office done any research into the application of home detention curfews? We know that in general they work well—I think that the successful completion rate is about 90 per cent., which is good news. However, there is at least some evidence, anecdotal or otherwise, that there is an inconsistency among different institutions in their readiness to use

home detention curfew, and that prisoners' chances of securing a release via that mechanism vary considerably depending on whether they are in local prisons, which seem to use the scheme far less than other institutions. I am sure that the Minister would agree that at least broad consistency would be of benefit. Why do different institutions have different attitudes?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Following my hon. Friend's point, I wish to ask for two more bits of information. First, is there any developmental evidence of the success of the home detention curfew? Do we have year-by-year percentage comparisons of curfew periods that show whether there was reoffending? Secondly, are percentage figures available for prisoners who did not reoffend during the two years afterwards?

It might be helpful if the Minister set out, as this has been occasionally controversial, the normal procedure for home detention curfews. My understanding is that there are two control mechanisms: an electronic one and the rules that set out where and when a released prisoner must be. Those are interrelated, and we need to understand current practices. If somebody is released on a home detention curfew, what checks and balances are there to ensure that if they break the rules they will be picked up? How well does the technology work? There has been a battle to establish confidence in the system. It is a sensible system, as it allows for rehabilitation in the community. It is a good and worthwhile initiative.

My hon. Friend spoke about local prisons. The prison establishment, for obvious reasons, is spread throughout the country, and that means, for example, that a significant number of prisoners from the south-east of England are imprisoned many miles from home. The provision of places, however, is spread more evenly. What plans does the prisons estate have to reorganise—and it has been done several times before—the provision so that we can maximise the number of prisoners from London and the south-east who go to prison, particularly for less serious offences, in London and the south-east? That would greatly reduce the concerns of prisoners and their families.

A similar concern is felt in Wales. There are not enough prison places for prisoners there, and many Welsh prisoners are sent to English prisons. When I was at prisons in Swansea and Cardiff, I was struck that there may be spare capacity. I am aware, however, that Swansea prison has experienced rebuilding problems. There are some very good specialised prisons in Wales such as the one at Usk in Monmouthshire. Is there a likelihood that prisoners from London and from Wales will be imprisoned nearer home?

Hilary Benn (Labour, Leeds Central)

A research study on the first 16 months of the curfew scheme commissioned by the Home Office was published in June 2001. It showed that home detention curfew assists prisoners in their transition back into the community. The home detention curfew scheme came into operation in January 1999; since then, more than 64,000 offenders have participated in the scheme. There are about 3,000 prisoners on curfew at any one time. About 90 per cent. of prisoners complete home detention

curfew successfully, and less than 3 per cent. are reported to reoffend. The remaining recalls are due either to breaches of the curfew conditions or to an inability to monitor electronically—for example, if accommodation is lost—because in order to work the system needs suitable accommodation, with a telephone to which the monitoring device can be attached.

In practice, the curfew period usually lasts from 7 pm to 7 am, and the offender is electronically monitored by means of a tagging device linked to the telephone. I think that I am right in saying that the tagging device sends out a signal, and if that signal is not received by the monitoring device because the person has gone away from the home—in other words, the person has not complied with the curfew conditions—that is identified by the monitoring company. Inquiries will clearly be made as to the reason. It might be a legitimate reason—for instance, someone has suddenly been taken ill and had to go to hospital—but the person may have decided not to comply with the curfew conditions, in which case the HDC will be brought to an end.

As I have said, there are clear trigger points at which the contractors are required to send breach reports to the Prison Service. All breach reports are considered and, when appropriate, acted on within 24 hours. We carefully monitor the contractors to ensure that they are issuing breach reports at the appropriate time.

The hon. Member for Southwark, North and Bermondsey raised a broader issue about prison places. I acknowledge that he and all hon. Members will be aware of the problem, particularly given the current population pressures on the Prison Service, and the difficulties that inherently result from trying to keep prisoners close to their families—something that the Prison Service works hard to achieve. When taking decisions about the provision of additional prison capacity, the Prison Service pays close regard to the point that he raised. For example there are two new prisons: one at Peterborough and one at Ashford—that is not Ashford in Kent, but the Ashford to the west of London.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Middlesex.

Hilary Benn (Labour, Leeds Central)

Yes. It is intended in part to meet the particular concern expressed by the hon. Gentleman. I am aware also of the concerns that he raised about Wales. We are aware of the difficulties. The Prison Service does its best, but it has to juggle a number of considerations. The first is the desire for prisoners to be close to their homes. The second is whether the prison is appropriate to the prisoner's category. The third is whether, within that category of prison, there is space to undertake courses that are a necessary part of their rehabilitation. At all times, those three factors are being juggled by the Prison Service as it tries to accommodate its strongest objective, which is to ensure that people can be close to home whenever possible.

David Heath (Liberal Democrat, Somerton and Frome)

Are presumptions made in favour of home detention curfew releases? It struck me, as my hon. Friend the Member for Southwark, North and Bermondsey was speaking, that one deficiency is the lack of mother and baby units in secure detention—and those that we have are effectively in the wrong place to provide a service for large swathes of the country. An offending mother with a baby is a good example of a class of offender who could, as a priority, properly be released under the scheme instead of being sent to mother and baby units a long way from their other children and the rest of the family.

Hilary Benn (Labour, Leeds Central)

All those who are eligible for HDC will be considered. The hon. Gentleman will be aware of the exclusions, but someone who fits the circumstances that he described who is eligible for HDC would clearly be considered, subject to meeting the requirements of the scheme—for instance, that there is accommodation to which they can be released. One of the reasons why people who would otherwise be eligible for getting HDC are not released is that they have nowhere to go where the monitoring device can be attached. Otherwise, subject to satisfactory accommodation being available and to meeting the other requirements of the scheme, there is no reason why people should not be able to participate in it.

Amendment agreed to.

Amendments made: No. 710, in

clause 225, page 124, line 33, leave out from 'may' to end of line 36 and insert—

'(a) release on licence under this section a fixed term prisoner aged 18 or over, other than a prisoner serving a sentence of intermittent custody, at any time during the period of 90 days ending with the day on which the prisoner will have served the requisite custodial period, and

(b) release on licence under this section a prisoner serving a sentence of intermittent custody when 90 or less of the required custodial days remain to be served.'

No. 556, in

clause 225, page 124, line 37, leave out '(1)' and insert '(1)(a)'.

No. 557, in

clause 225, page 124, line 41, at end insert—

'(2A) Subsection (1)(b) does not apply in relation to a prisoner unless—

(a) the number of required custodial days is at least 56, and

(b) the prisoner has served—

(i) at least 42 of those days, and

(ii) at least three-quarters of the total number of those days.'.—[Hilary Benn.]

Hilary Benn (Labour, Leeds Central)

I beg to move amendment No. 558, in

clause 225, page 125, line 16, leave out from beginning to 'or' in line 17.

Subsection (3) lists those offenders not eligible for home detention curfew. Subsection (3)(h) relates to the prisoner's return to prison at any time under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, which provides that if an offender who has been released from prison commits another imprisonable offence before his sentence has expired, the court may order his return to prison to serve a period of imprisonment not exceeding the length of the period between the date of the new offence and the expiry date of the sentence. Section 116 applies to all

sentenced prisoners from the date of their release to the expiry date of the sentence, whether they are released on licence or not. The Bill repeals section 116, as offenders will remain on licence until the end point of their sentence: that is, there is no unexpired part of the sentence beyond the licence period. Clauses 232 and 233 provide for the recall of prisoners while on licence.

The amendment removes that category of prisoner from the list of exclusions for home detention curfew. Statutorily excluding from home detention curfew prisoners who have previously breached conditions while on licence unnecessarily limits the discretion of governors when considering such prisoners for release on HDC in future sentences. However, governors will, of course, continue to take such breaches into account when assessing whether an offender is suitable for release on HDC in future.

Amendment agreed to.

Amendments made: No. 559, in

clause 225, page 125, line 21, at end insert

'or, where the sentence is one of intermittent custody, the number of the required custodial days remaining to be served is less than 14'.

No. 560, in

clause 225, page 125, line 25, leave out '(1)' and insert

'(1)(a) or (b), (2A) or (3)(i)'.

No. 561, in

clause 225, page 125, line 28, at end insert 'or (2A)(b)(ii)'.

No. 562, in

clause 225, page 125, leave out lines 29 to 31.

No. 563, in

clause 225, page 125, leave out lines 32 and 33 and insert—

'(5) In this section—

''the required custodial days'', in relation to a person serving a sentence of intermittent custody, means—

(a) the number of custodial days specified under section 165, or

(b) in the case of two or more sentences of intermittent custody, the aggregate of the numbers so specified;

''the requisite custodial period'', in relation to a person serving any sentence other than a sentence of intermittent custody, has the meaning given by paragraph (a), (b) or (d) of section 224(3);

''sentence of intermittent custody'' means a sentence to which an intermittent custody order relates.'.—[Hilary Benn.]

Question put and agreed to.

Clause 225, as amended, ordered to stand part of the Bill.

Clause 226 - Release on licence of prisoner serving

Hilary Benn (Labour, Leeds Central)

I beg to move amendment No. 564, in

clause 226, page 125, line 38, leave out subsections (2) and (3) and insert—

'(2) As soon as—

(a) a prisoner to whom this section applies has served one-half of the appropriate custodial term, and

(b) the Parole Board has directed his release under this section,

it is the duty of the Secretary of State to release him on licence.

(2A) The Parole Board may not give a direction under subsection (2) unless the Board is satisfied that it is no longer

necessary for the protection of the public that the prisoner should be confined.

(3) As soon as a prisoner to whom this section applies has served the appropriate custodial term, it is the duty of the Secretary of State to release him on licence unless the prisoner has previously been recalled under section 232.'.

The amendment arises following the judgments in the cases of Stafford and of Benjamin and Wilson. It is necessary because it requires the Secretary of State to release an offender serving an extended sentence, once directed to do so by the Parole Board. The detention of an offender past the halfway point of sentence is purely on the basis of risk. The offender is entitled to have that risk determined by an independent body. Once that determination has been made, there can, following recent case law, be no justification—this partly answers the point raised by the hon. Member for Somerton and Frome—for any further decision-making function on the part of the Secretary of State. The clause must therefore be amended to take account of such judgments.

The amendment also brings provision for the extended sentence into line with release provisions for the sentence of imprisonment or detention for public protection and life sentences contained in the Crime (Sentences) Act 1997.

Amendment agreed to.

Clause 226, as amended, ordered to stand part of the Bill.

Clause 227 - Power to release prisoners on

David Heath (Liberal Democrat, Somerton and Frome)

In what circumstances would the Secretary of State consider it so urgent to release a prisoner under licence that he would be unable to consult the Parole Board? I find it difficult to conceive of such circumstances. Changes could be made to the prison regime on extreme compassionate grounds, but actual release, without consideration by the Parole Board, seems unlikely. The Minister obviously has something in mind. Will he share it with the Committee?

Hilary Benn (Labour, Leeds Central)

Yes. The circumstances would be those in which death was imminent. A request would be received for compassionate release because someone was terminally ill, but it may not always be possible to carry out the consultation for which the clause would otherwise provide. Subsection (2) covers that particular, albeit rare, eventuality.

Question put and agreed to.

Clause 227 ordered to stand part of the Bill.

Clause 228 ordered to stand part of the Bill.

Clause 229 - Licence conditions

Hilary Benn (Labour, Leeds Central)

I beg to move amendment No. 565, in

clause 229, page 127, line 3, at end insert—

'(2A) For the purposes of subsection (2)(a)(i), any reference in the relevant court order to the licence period specified in the order is, in relation to a prohibited activity requirement, exclusion requirement, residence requirement or supervision requirement, to be taken to include a reference to any other period during which the prisoner is released on licence under section 225 or 227.'.

Under the amendment, prisoners serving a sentence of custody plus or intermittent custody who are released early on home detention curfew or on compassionate grounds may be subject to certain licence requirements despite their court-ordered licence period not having started. It also allows a prohibited activity requirement, exclusion requirement, residence requirement or supervision requirement to be added to that period. The net effect is to ensure that licence conditions kick in when the prisoner is no longer in custody.

Amendment agreed to.

Hilary Benn (Labour, Leeds Central)

I beg to move amendment No. 566, in

clause 229, page 127, line 5, leave out

'(including such a sentence imposed under section 207) or more'

and insert

'or more (including such a sentence imposed under section 207)'.

The amendment is necessary to rectify a simple drafting error, because a word has been misplaced in the clause.

Amendment agreed to.

Clause 229, as amended, ordered to stand part of the Bill.

Clause 230 ordered to stand part of the Bill.

Clause 231 - Curfew condition to be included in licence under section 225

Clause 235 - Additional days for disciplinary offences

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

We are making good progress. The clause raises an important matter that has been the subject of recent court judgments. I seek clarification from the Minister on his understanding of the European Court's judgment and on whether he thinks that this proposal is compatible. My understanding is that the clause will allow prison

rules to include provision for the award of additional days of imprisonment to those serving a fixed-term sentence or to prisoners on remand who have committed disciplinary offences.

The European Court's argument was that the courts should pass sentence, not prison governors, because deprivation of liberty was a matter for the civil courts and should not be regarded as an administrative sanction for prison governors to impose. It would be sensible for me to ask the Minister to state what the court decided in 2001 and how the Government believe that clause 235 would be compatible with its decision.

Humfrey Malins (Conservative, Woking)

I shall briefly make a point that the General Council of the Bar has raised. It fears, in relation to another clause, that the removal of remission may lead to a decline in prison discipline at a time when the service is already at breaking point. The Bar Council says that similar criticism is relevant to clause 235. It points out what I think we know to be the truth: young offender institutions have been the subject of a great deal of criticism over the years, and the suicide and self-harm rate in some of those institutions is a matter of concern. Every time that we face the issue of additional days for disciplinary offences, we also face the prospect—I put it no higher—of discipline and morale problems. That is why I referred to young offenders. I simply want to float that point. I say to the Minister that the clause—probably correctly—causes some people concern.

Hilary Benn (Labour, Leeds Central)

The clause re-enacts the Criminal Justice Act 1991, which enables rules to be made under the Prison Act 1952 for additional days to be added to a prisoner's sentence should he be found guilty of a disciplinary offence. The hon. Member for Southwark, North and Bermondsey referred to the ruling of the European Court of Human Rights on 15 July 2002—not 2001—that disciplinary proceedings that led to awards of additional days were a breach of article 6. They breached the provisions that relate to a fair trial because it was prison governors who took the decisions. The European Court therefore ruled that that was not allowed.

For that reason, on 15 August, Parliament amended the prison rules to allow the Secretary of State to appoint independent adjudicators. It is perfectly in order, in re-enacting the provision in the 1991 Act, for additional days to be awarded in serious cases. However, an independent adjudicator must award those additional days, not a prison governor. Prisoners have the right to be legally represented at public expense in those proceedings.

These two changes have been made to the system to permit added days to continue to be awarded in certain cases. I must confess that there was some concern in the Prison Service at the time of the judgment about the impact that the changes would have. However, that concern has not been borne out by subsequent events. Although independent adjudicators only can award added days, prison governors still retain several administrative measures such as withdrawal of privileges and the removal of television. A number of sanctions are available in a prison to assist prison governors in maintaining good

discipline and to encourage offenders to behave themselves when they are in prison.

It is interesting to note that added days were done away with in Scotland quite a long time ago. The anxiety that the hon. Members for Southwark, North and Bermondsey and for Woking referred to, which people felt at the time of the judgment, has not been borne out by subsequent events. The Prison Service now feels that the most appropriate route is to have the independent adjudicators who deal with the most serious cases, because of the penalty that can be provided. I refer to the more serious cases, because not all the cases that would have been considered for added days under the old arrangements now come forward to the independent adjudicators. At the same time, prison governors are encouraged to use the range of administrative measures and sanctions at their disposal to deal with other infractions of prison rules. In fairness, one could say that the system is working well and that the fears originally expressed have not come to pass.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am grateful to the Minister and have two questions. First, am I right in assuming that there has been no further challenge to the corrected policy that adjudicators can have the quasi-judicial function, and that they are therefore outside the administrative provision? Maybe the Minister remembers—I do not—whether the court in its original ruling said that. It would be sufficient if the matter was one for non-administrative, independent decision making and, if so, that was trailed by the judgment.

Secondly, is the court understood to have held that a maximum period is permitted for extra penalty? My assumption is that it would not be possible in any event to put any more remission back on than the person in question had earned by good behaviour. He or she could only forfeit their good behaviour bonus. It would be helpful if the Minister has information to answer that question. If he cannot answer now, perhaps he can later. It is a matter of principle that even if someone misbehaves, he or she should not be in a worse position at the end of their time in prison than they would have been, in light of the judgment of the court in the first place.

Hilary Benn (Labour, Leeds Central)

I shall gladly respond to the hon. Gentleman's second point in writing. In relation to his first point, the new system was designed to comply with the European convention on human rights. I am happy to confirm that there have been no challenges to the new arrangements since they were put in place.

Question put and agreed to.

Clause 235 ordered to stand part of the Bill.

Clause 236 - Persons liable to removal from

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 906, in

clause 236, page 130, line 12, leave out from 'effect' to end of line 13.

I have been reflecting on the wording of the amendment, and I am not sure whether it achieves my intentions, so I say right from the start that I do

not intend to press it to a Division. However, I wish to use it to explore an important issue.

The clause enables persons to whom the extended sentence detailed by clause 236 applies to be removed from the United Kingdom at the appropriate break point in their sentence without reference to the Parole Board. The argument given in the explanatory notes is that if a person is being sent abroad, they are out of sight and out of mind, and the Parole Board is therefore not relevant to that procedure. However, it is important to remember that clause 236 applies to clauses 207 and 208, which cover those offenders who have been convicted of violent or sexual offences and are considered to be a significant risk to members of the public, through the occasioning of serious harm in the future.

If the Government plan to release people who are likely to commit further serious offences of a violent or sexual nature, it, it does not matter ha'pence whether they are released in this country or into another community to commit those offences. It is an irresponsible act. Surely we in the United Kingdom have some responsibility to the public in other countries.

If a person is likely to remain a serious threat to public safety, irrespective of whether the Secretary of State makes the decision without the benefit of the advice of the Parole Board, that person should be released only if that means translation to imprisonment or appropriate custody or other sentence in another jurisdiction. Anything else is simply washing our hands of the results of our action. That is not the behaviour of a responsible Government or judicial system.

In what circumstances would the power be used? Would not it be more sensible for the Parole Board still to be consulted? If the board maintained the view that the individual represented a serious threat to the public, would not it be more appropriate for that person neither to be released in this country nor deported to be free to commit further offences in another country? The provision seems irresponsible, and I cannot support it. I should need a great deal of justification from the Minister to show in what circumstances it would be appropriate to send serious offenders elsewhere to do their mischief.

Hilary Benn (Labour, Leeds Central)

A prisoner who is liable for removal from the United Kingdom—that is what we are talking about: people who can be deported—and who is serving an extended sentence can be deported after serving half the sentence. Under the clause, release followed by deportation would occur automatically halfway through the sentence. Clearly, offenders who are not being deported are, as the hon. Gentleman has recognised, subject to the Parole Board's decision about their release. The amendment would make the release of offenders due for deportation also a matter for the Parole Board.

It might be helpful to mention that the clause is a re-enactment of section 46 of the Criminal Justice Act 1991. Only a few offenders would be covered by the provision, which has been in force for getting on for 12 years. The difficulty with the amendment is that the

Parole Board would consider matters such as licence conditions and supervision following release, which are irrelevant to someone who is to be deported. There would be no means of enforcing those licence conditions or ensuring supervision. It is simpler and more practical to deport such offenders at the earliest opportunity.

I understand the hon. Gentleman's argument, but it would be for the jurisdictions that were to receive individuals who had been convicted in the way set out in the Bill—or, indeed, people convicted of very serious offences under the current provisions, who reached the end of a fixed sentence and were then deported and returned to their country of origin—to determine how to safeguard themselves and their people. However, given that the clause is a re-enactment, I undertake to find out more about the extent to which the existing statute has been used, and about what is done, in the few relevant cases, to inform the other jurisdiction that the person in question is coming its way.

David Heath (Liberal Democrat, Somerton and Frome)

With respect, that does not answer the point. Informing the other jurisdiction is of no benefit because, unless its legal system is oddly framed, it would be unable to take into account the offence committed by the individual while he was in the United Kingdom, where the offence is, effectively, a spent offence, because the term of imprisonment has ended. I cannot envisage circumstances in which that person could then be taken into custody for that offence. So we have a situation in which, if the person had remained in this country, he might have been assessed by the Parole Board as continuing to pose a risk to the community, but the moment he goes outside British jurisdiction, he is entirely at liberty, irrespective of whether that advice is given to another jurisdiction.

I said that I was not entirely satisfied with the purport of the amendment because it still allows the Secretary of State to make a decision, irrespective of the Parole Board's decision to deport in those circumstances. I add that proviso about the strict interpretation of the amendment. What would happen if the polarity of the situation were to be reversed? The situation does not apply in European Union jurisdictions, but let us suppose that it does. Can one imagine what the tabloid newspapers would make of it if the French Government were to send us people who had been convicted of serious violent or sexual offences who, in the view of the competent authorities, remained a danger to the public at large, who had served only half of the sentence imposed by the court in that jurisdiction, and who were then deported to our shores and were at liberty to commit offences in our jurisdiction? My suspicion is that the editor of The Sun would have something to say about that, and I believe that any responsible person would.

Whether it is a re-enactment or not, it opens up some serious questions about the policy objectives of allowing people to be deported in such circumstances, other than to go directly into custody in another

jurisdiction, which is entirely different. I shall reflect on what the Minister has said, but he has not really dealt with the case that I put to him. I should be interested to receive any information that he can give me on the number of occasions on which the provision has been used in the past and in what circumstances. The matter is a cause for grave concern and undermines co-operation between jurisdictions and police authorities. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 568, in

clause 236, page 130, line 14, leave out 'Part' and insert 'Chapter'.—[Hilary Benn.]

Clause 236, as amended, ordered to stand part of the Bill.

Clauses 237 and 238 ordered to stand part of the Bill.

Clause 239 - Release on licence etc:

Clause 240 - Alteration by order of relevant

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I seek clarification from the Minister about the implications of this wide-ranging clause. It gives the Secretary of State power to amend by order the proportion of a custodial sentence of 12 months or more that must be served in prison before release. It also enables the Secretary of State to amend by order an extended sentence given for serious sexual or violent offences under clauses 207 and 208. Such sentences must be served before a prisoner is eligible for release on the recommendation of the Parole Board.

The clause does not qualify the power of the Secretary of State; he could, in theory, tell Parliament that rather than 50 per cent. of the original sentence being spent inside, 60 per cent., 75 per cent. or 99 per cent. will be spent inside. He could also say that the entirety of the extended sentence could be spent inside. I am uncomfortable with the clause, as it undermines the principle of legislation that the Government introduced on the basis of the Halliday report and other consultation.

It introduces custody plus and custody minus, and it introduces a regime under which people can be given a twin-part sentence. Usually, it is 12 months or under or 51 weeks or under. Some of us would like three months of the sentence to be spent inside and the rest outside. If a sentence is longer than 12 months it

should be split, and if it is an extended sentence there is an add-on for risk. We ought not to include a clause that could allow these provisions to be ripped up and rewritten by order—even one that required parliamentary approval. If we accept the principle that it is important to get sentencing guidelines and the balance between custody and licence right, we need primary and not secondary legislation. I would need a great deal of persuading that the clause should stay in the Bill.

Hilary Benn (Labour, Leeds Central)

This is simply a re-enactment of the provisions of the Criminal Justice Act 1991, subject to affirmative resolution. That may help the hon. Gentleman. The clause also enables the Secretary of State to amend by order the proportion of an extended sentence for certain sexual and violent offences, and that relates to clauses 207 and 208, which must be served before a prisoner is eligible for release on the recommendation of the Parole Board.

I understand the hon. Gentleman's concern about the procedure that clause 240 provides for, but I can only reaffirm that it carries forward what is already in the 1991 Act.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am aware of existing legislation. Is there absolutely no limitation on the Secretary of State's power? The clause will allow him to introduce draft orders removing all the licence provisions and also orders for non-custodial elements for general or extended sentences. There is no limitation on his powers; he could remove the provisions of custody plus and custody minus completely if he wished. Perhaps the clause remains in the Bill because the word-processor reprinted it without people having thought through its implications in the light of custody plus and custody minus.

Custody plus and custody minus are based on the principle that a sentence will be in halves. The clause is a legacy of the old regime; I wonder whether it is not a leftover. Perhaps there was a mini discussion among civil servants or Ministers, who said, ''Oh, look; it is not really consistent, but shall we leave it in?'' I guess that they said that it would be good to give the Secretary of State the opportunity to have lots of power, so they left it in. That is not a good enough reason for keeping it. Will the Minister confirm that it is unqualified, and explain how it is consistent with the new regime?

Hilary Benn (Labour, Leeds Central)

It does not relate to custody plus or to intermittent custody. I understand the hon. Gentleman's argument, but the Government are understandably wedded to these new structures, as they form an important part of the Bill's sentencing provisions. However, I am happy to confirm that this power—as I say, it is a re-enactment—could alter the relevant proportion of sentences of 12-months plus, or of extended sentences, if that were the wish of the Secretary of State; and it would be subject to the affirmative resolution, so a case would have to made to the House of Commons and voted upon.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 15, Noes 2.

Schedule 16 - Deferment of service

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 727, in

schedule 16, page 227, line 20, at end insert 'in custody'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following amendments:

No. 728, in

schedule 16, page 228, line 8, leave out from 'with' to 'relating' and insert 'a written report'.

No. 729, in

schedule 16, page 228, line 39, after 'offence', insert 'punishable with imprisonment'.

No. 730, in

schedule 16, page 229, line 38, leave out paragraph (b).

Humfrey Malins (Conservative, Woking)

I shall be brief. Deferment of sentence is introduced in clause 242. On a personal note, I must tell the Minister that deferring sentence is not helpful. Most judges of any experience do not defer sentence because it is more trouble than it is worth—and here's why.

Judges normally defer sentence by saying to the defendant, ''I defer sentence for six months, and during that time you must first behave yourself and not commit any other offences; secondly, you must get a job; and, thirdly, you must make some reparation.'' The list may include other things. The odds are that the defendant will come back to court at the end of the period of deferment and be only halfway there—but not quite: he had a job but lost it; or he kept out of trouble but was given a caution. It puts the courts in a difficult position, and most experienced judges never defer sentence. However, the amendments are simple.

New section 1(6) of the Power of Criminal Courts (Sentencing) Act 2000, proposed in schedule 16 provides that a court that

''defers passing sentence on an offender shall not on the same occasion remand him.''

I assume that that means remanded in custody, which is the reason for amendment No. 727. I would be happy if the Minister could confirm that. New section 1A of the 2000 Act includes the phrase

''such information as the court may require''.

That envisages an oral report, but it would be tidier to use the words ''a written report'', as suggested in amendment No. 728.

Amendment No. 729 seeks to amend proposed new section 1C(1), which states:

''A court which under section 1 above has deferred passing sentence on an offender may deal with him before the end of the period of deferment if during that period he is convicted in Great Britain of any offence''.

I assume that that must mean an offence that carries a custodial sentence, although it is not stated, because otherwise it could apply to a road traffic offence, which is of no relevance to the provision.

I move on to amendment No. 730. I will not press any of my amendments, but page 229 made me think that if sentenced is passed by the Crown court it must mean that another offence had been committed. Would this provision aggravate an offence that had previously been the subject of deferred sentence by the magistrates? However, that is not a strong point. If I were asked as to my best point in the past five minutes I would be pushed to tell the Minister what it was, but I think it was the point that the offender should not be remanded for an offence carrying a custodial sentence.

Hilary Benn (Labour, Leeds Central)

I listened with interest to the hon. Gentleman's comments about deferment of sentence. Some judges seek to defer sentences and some do not. I respect enormously the hon. Gentleman's experience. As he said, sentences are deferred to enable the court to monitor the offender's compliance with community requirements. The offender will have a supervisor who will provide the court with information as to compliance. As with suspended sentences, if the offender does not comply or commits a new offence, he can be dealt with immediately.

In relation to amendment No. 727, the Bill currently states, ''remand him''. It is not necessary to add ''in custody'', because at this stage of the proceedings after conviction remand could only mean in custody. That is the confirmation that the hon. Gentleman was seeking.

Amendment No. 728 would limit the provision of information to a written report. We made provision for reports to be provided in oral form for pre-sentence reports under an earlier clause and we would like to retain that flexibility and read it through to these provisions.

Amendment No. 730 would remove the power of the magistrates court to commit an offender to the Crown court for sentence. We are dealing with a re-enactment of section 1(5)(b) of the Power of Criminal Courts (Sentencing) Act 2000. There is no reason why, in cases where an offender has pleaded guilty before venue, the court cannot commit the offender to sentence after a deferment as well as straight away. There is no conflict with the changes to committal for sentence in the earlier parts of the Bill. The section 3 referred to in proposed new section 1D(2)(b) is section 3 of the Powers of Criminal Courts (Sentencing) Act 2000, which the Bill amends.

In relation to amendment No. 729, proposed new section 1C(1) is a discretionary power, but it should go by the court, which can then choose to ignore a road traffic offence if necessary—to use the hon. Gentleman's example. However, we would want serious non-custodial offences to be included.

Humfrey Malins (Conservative, Woking)

What about non-imprisonable offences?

Hilary Benn (Labour, Leeds Central)

I shall reflect on that point.

Humfrey Malins (Conservative, Woking)

The Minister has kindly undertaken to reflect on the point; I think that he thinks that it is not a bad one. Given that he is going to come up with a serious non-imprisonable offence, I will look forward to his written response. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 16 agreed to.

Clause 243 ordered to stand part of the Bill.

Schedule 17 - Inclusion of drug treatment

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I beg to move amendment No. 915, in

schedule 17, page 230, line 41, at end insert,

'and

(c) that his dependency upon, or propensity to misuse, drugs is related to his offending behaviour, such that it is relevant and proportionate for the court to require treatment, and

(d) that the option of voluntary treatment provided concurrent to the order would be unsatisfactory'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss amendment No. 916, in

schedule 17, page 232, line 11, at end insert,

'and

(c) that his dependency upon, or propensity to misuse, drugs is related to his offending behaviour, such that it is relevant and proportionate for the court to require treatment, and

(d) that the option of voluntary treatment provided concurrent to the order would be unsatisfactory'.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The schedule is linked to clause 243. It would give the courts power to include drug treatment and testing in certain orders in respect of young offenders. It raises an issue that we have touched upon before, which is when is it appropriate for young people, particularly 14 to 17-year-olds and, in theory, those who are even younger, to be subject to a formal drug treatment and testing order? The children's organisations and societies quite reasonably express concern about this.

The amendment would allow the power to be used only if alternatives of voluntary treatment had been considered and rejected for good reason. At present, the power is proposed to be available where a court proposing to make an action plan is satisfied that the offender is dependent on or has a propensity to misuse of drugs, and that his dependency or propensity is such as to require and be susceptible to treatment. If the amendment were agreed to, the dependency on or propensity to misuse of drugs would be related to the

offending behaviour. We must ensure that we do not send youngsters for compulsory drug treatment and testing if their offence is unrelated to drug addiction. There may be perfectly good reasons for treating their drug addiction but making them subject to a court order, if is unrelated to the offence, may not be helpful at all.

Any such order should be relevant and proportionate to the offence. If the offence was breaking a window, nicking some apples off a tree or some sweets from a sweetshop, it might not be proportionate to send the offender through a great regime of drug treatment and testing. Secondly such an order could come into play only if the option of voluntary treatment provided concurrently to the order would be unsatisfactory. If it were known through the social inquiry report that the youngster had had contact with solvents and might have a solvent abuse concern, there might well be an argument for dealing with it. However, voluntary regimes might be able to do that.

Youngsters of 14 to 17 often breach orders to which they are made subject. That is not necessarily intentional; it could be natural adolescent indiscipline. They might not turn up. They might be persuaded to go off with their mates instead of turning up at the health centre, the doctor's surgery, the clinic, the school education welfare office or the local family centre. That would bring down on their heads all the sanctions that result from breaching an order.

Sitting suspended for a Division in the House.

On resuming—

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The Children's Society has provided a strong argument in support of writing the qualifications into the schedule, and I think that the Committee should heed it. It states:

''The Children's Society believes that any compulsory medical or psychological treatment by court order should be taken as a very serious prospect, and recognised as one that incurs many civil and children's rights issues. We are concerned in principle at the prospect of children being compelled, on pain of the criminal offence of breaching a court order, to undergo the treatment they need. We recognise, however, that these are measures to which the Government and many others have a strong commitment . . . We are therefore deeply concerned that the provisions contained in Schedule 17 do not include safeguards to ensure that the very serious step of using court compulsion to treatment would only be used where absolutely necessary, and where voluntary options had already been considered and tried.

We are also concerned that, for a court to compel drug treatment as part of a sentence there ought to be good reason for that treatment to form part of the disposal for their offence. The inclusion of treatment in the order should not merely be justified simply because the child needs it and would benefit from it. For example, a child suffering badly from asthma may both need and benefit from regular medical attention during the course of their sentence, however it would not be considered something appropriate to require within their sentence, on pain of breach for failure to comply. For this reason, we believe that the link between the individual child's drug use and the offence(s) for which they have been convicted, should be demonstrated to the court in order to warrant the inclusion of treatment requirements.''

That is a strong argument. There should be a clear link between the drug problem or addiction, if there is

one, and the offence. There should be a clear view that there is no alternative way to deal with the matter. I hope that the Minister will be sympathetic.

Hilary Benn (Labour, Leeds Central)

If a young offender has a dependency on or a propensity to misuse drugs, it is important for the courts to have the option to include a treatment requirement in an action plan order or supervision order, regardless of whether that dependency or propensity is specifically related to the offence.

We are all aware of the evidence, which we have debated at length, of the link between illegal drug use and offending. Although not all drug users go on to commit crimes related to their drug use, it is important to take every opportunity—particularly in the age group in question—to identify and deal with, as early as possible, dependency on and propensity to misuse drugs. The point is to do it early, to minimise the chance that the young person will become a persistent drug user with a life of persistent crime.

I think that the answer to the hon. Gentleman's point is that the court would include a treatment requirement in the orders if it was satisfied that that would be a relevant and proportionate intervention. That test is very important. As to voluntary drug treatment running concurrently with an order, it is open to any misuser of drugs—anyone with a problem—to seek voluntary treatment at any time. If the offender has done so and the courts are made aware of it, they can take it into account in considering whether it is appropriate to include a treatment requirement in an order.

The purpose of the schedule is to allow treatment to be included as a component of a community sentence. If an offender consents to treatment as part of an order but subsequently drops out or withdraws his or her consent, that would be taken into account in deciding how best to deal with them in the light of the continuing aim to help tackle drug-using behaviour. If the treatment were solely voluntary, the offender would have less of an incentive to continue it. If he or she dropped out after the making of an order, the court could not subsequently make provision for effectively addressing the drug-using behaviour.

Finally, I turn to the hon. Gentleman's question about breaches. The guidance will deal with it and will certainly not propose a policy of ''one breach and you're out''. We all know the difficulties of dealing with this sort of problem, particularly for young people. The underlying aim is to help young people out of their drug problems. Youth offending teams and the specialist drug workers who support them are well used to dealing with young people who have multiple problems, including drug misuse, and will make every effort to encourage and support them through the process. The guidance to the courts and the youth offending teams will make it clear that breach action should be undertaken only as the last resort. The purpose is not to deal with a breach, but to help young offenders out of the drug problems that have a grip on them.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am reassured by the Minister's closing remarks that no assumption of automatic

breach leading to sanctions will apply. The people who work with youngsters understand that, too. I recognise that the Government have a general public policy interest in dealing with youth offending and drug abuse. I hear what the Minister says about his presumption for voluntary rather than compulsory provision.

The one unsatisfactory aspect of what the Minister said applies to my examples of sweet-nicking, apple-nicking or pane-of-glass-breaking—small offences that may be committed by someone who, as a juvenile, might have had a recurrent history of sampling solvents or drug abuse. The Minister seems to endorse taking the opportunity of a youngster appearing in court to place him or her in some sort of compulsory regime. That is a draconian step that may be appropriate only as a last resort, but more often than not it is unwise for people of such ages because kids customarily respond better to something that they are working with rather than against. The danger of imposing an order is that it is perceived to be unfair by the youngster because it has nothing to do with his offence. That amounts to a serious objection.

I shall not press the amendment to a vote. People reading our proceedings and others will deliberate further on the appropriate triggers for intervention. Imposing orders on young people is a sensitive issue, to which we shall doubtless return later. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I beg to move amendment No. 911, in

schedule 17, page 231, line 25, leave out from beginning to 'unless' in line 26.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following amendments:

No. 912, in

schedule 17, page 231, line 26, after 'he', insert

'has indicated his willingness to comply with treatment, and the appropriate consent to treatment has been obtained'.

No. 913, in

schedule 17, page 232, line 38, leave out from beginning to 'unless' in line 26.

No. 914, in

schedule 17, page 232, line 39, after 'he', insert

'has indicated his willingness to comply with treatment, and the appropriate consent to treatment has been obtained'.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

This group of amendments deals with the willingness of the person in question to comply with—effectively to consent to—the treatment. Subsection (4D)(b) requires consent

''in the case of an order made or to be made in respect of a person aged 14 or over''.

I would apply that requirement for consent to youngsters in general. I am conscious that we have debated who consents for whom, at what stage a parent consents, and whether, if a parent or guardian is not available and no consent is given, an order can still be made against the youngster.

The amendments reflect the concerns that have been expressed to me by organisations concerned with the welfare of children, as well as reflecting my own, that we should try in every circumstance to obtain the consent of the young person. Whether somebody is aged 13 or 15, the precondition for the success of any such treatment is that the young person has agreed to be a partner in it. Crossing the line to something that does not have consent, and is thus seen to be coercive, may create a difficulty in that it would produce a counter reaction from the youngster. Gaining consent has the extra advantage of the youngster's understanding that there might be a sanction for the breach of the order. He would accept that sanction more readily than if he had not agreed to the order and did not consider it justified.

We have discussed what constitutes consent to that age group. Do we mean consent by the youngster, or consent exercised on his behalf? If the person is in care, should the local care worker or the foster parent give consent? Can the Minister elaborate on that? These are probing amendments, designed to ensure that we do not start marking up young people as the subject of orders.

My last question is to do with the criminal record. If a youngster breaks the window or nicks the apples and ends up in court where he receives a drug treatment and testing order by virtue of the court order, how long will that remain on his record? Can he at any stage seek to remove it? In what circumstances can it not be erased under the rehabilitation of offenders process?

In court, criminal records follow people, even though they might not apply in the civil world. My concern is that, as youngsters go through all sorts of adolescent difficulties, it is perfectly proper for them to be subject to social inquiry reports and, later, to probation reports. Such orders are less proper for criminal records for adults. It might be wrong to record a problem that had nothing to do with the offence, because that might prejudice a later sentencer should the individual commit an offence that indeed has to do with drugs or alcohol. Will the Minister say how far such records once on the books will inescapably follow the individual into adult life?

Hilary Benn (Labour, Leeds Central)

I am not sure what answer the Criminal Records Bureau would offer, but I am happy to undertake to find out and to write to the hon. Gentleman. I am grateful to him for raising the difficult issue of consent, and I recognise the probing nature of the amendments. Under the schedule, consent simply to the attachment of a treatment requirement to the order is required—not consent to the treatment itself. For example, if a medical intervention is proposed as part of the treatment order, that would require consent. Therefore, giving consent to the treatment requirement in general does not presuppose consent to the individual elements, such as the medical ones that I mentioned.

Having reflected on the matter, we feel that it is sensible to require the consent of those aged 14 and above to the inclusion of a treatment requirement, not least for the simple reason that those young people should be engaged in the decision-making process as

actively as possible. If they have given their consent, the likelihood that they will wish to participate increases, because they have put something into the process. All the lessons demonstrate that an individual's positive engagement in compliance will increase the chances of a successful process. Without that compliance and engagement, the process is likely to be less successful, for obvious reasons. One must make a judgment on where the cut-off point should be. Offenders over the age of 14 are much more likely than younger offenders to be able to understand what it means to be asked to give consent.

John Mann (Labour, Bassetlaw)

The issue of offenders preferring to give consent does not have any evidence base, and I hesitate to ask for the Minister's. Offenders who have a drug addiction will, by their nature, already be voluntarily attempting to get off that drug. Offenders have repeatedly made the point to me that the nature of the coercion and the rigour is precisely why DTTOs are popular with them. They demand DTTOs in the same way that later in life they demand prison, because if they could get off, say, heroin voluntarily, they would already be doing so. The coercive nature—

Eric Illsley (Labour, Barnsley Central)

Order. The hon. Gentleman is intervening; he is not making a speech. Interventions should be brief.

Hilary Benn (Labour, Leeds Central)

I understand the point that my hon. Friend makes. He refers to DTTOs for the most difficult group of offenders, the early signs of which are encouraging. That does not take away from my general point—it is no more than that—that it is better if one has someone's consent to take part in a process than if one does not. I would not put the point any stronger than that, in responding to the request for a large body of evidence to support that supposition.

I was just saying that not all 10 to 13-year-olds will be mature enough to understand the implications of consenting to the inclusion of a treatment provision in the order. In those circumstances—one must draw the line somewhere—it is for the court to determine the maturity of the child and to consider both the child's and the parents' response to the inclusion of the treatment provision. The schedule as drafted provides for the willingness to comply with treatment. Without such willingness, there would be no consent to the inclusion of a treatment requirement in the order. The individual carrying out the treatment would, when necessary, require the individual consent to the treatment to be provided. The precise form of the treatment will not be prescribed in the requirement, so that the treatment regime can be amended to take account of all factors, including those that might arise after the making of the requirement.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Again the Minister is in part reassuring. This is a debate in which it is helpful to know that the policy is that there will be consent. I understand the point that the hon. Member for Bassetlaw (John Mann) made, which is that there are occasions on which youngsters need coercion or encouragement rather than just their voluntary agreement. In my experience it is more often the families of people with drug problems who say, ''I wish they could be locked up, because in that way there is a

chance that they will get rid of the supply for their habit.'' That also presumes that if someone is locked up the drugs will not be available. In fact, the prison authorities are now getting better at keeping drugs out of prison.

I do not wish to divide the Committee. The amendments are about how we deal with young people who may have a drugs problem and may need help as well as punishment. We can return to the discussion later, but for now I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I beg to move amendment No. 917, in

schedule 17, page 231, line 27, leave out subsections (4E) to (4G).

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss amendment No. 918, in

schedule 17, page 232, line 40, leave out subsections (5) to (8).

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The Government Whip may be delighted to know that these are the last amendments from our Benches this afternoon.

This is the third set of amendments to the schedule and relate to another aspect of treatment: the action plan and supervision orders. If anyone does a degree in social work after this, I assume they will have to know what all the different variants on the theme are, and what can be asked for, recommended or received. I hope that we manage to get fewer titles of orders rather than a whole range of things.

It seems to me that the courts often—the hon. Member for Woking will know more about this than I do—have to spend a huge amount of time working out which of many options are available, only to find that in many parts of the country they are not available.

The amendments are primarily probing amendments. We suggest that it is not necessary to have the additional testing requirements under this type of authority when a treatment requirement has already been decided on. The Children's Society and others have put arguments against those additional requirements. The Children's Society believes that

''these requirements are entirely unnecessary, given that drug testing, where it is believed by professionals to be necessary as part of treatment monitoring, could already be detailed within a treatment plan under the treatment requirement.''

That seems to me to be logical and intelligible. The schedule seems to be creating a whole additional provision to do something that can already be done. What does this provision allow for that is not provided for by other routes?

Moreover, am I right in believing that failure to comply with the suggested provision would result in the potential for breach and its ensuing consequences? What is the implication for the future record of the young person of receiving this sort of order? How long will it remain on a young person's record—will they be lumbered with it for the rest of their lives?

The addition of testing requirements to the treatment order suggests that the courts would keep on adding additional qualifications and requirements

to the sanctions that they apply to the young person—the society refers to ratcheting up the response to the offence. The more conditions there are, the more likely a breach will be. If there are six conditions, there will, by definition, be six opportunities for a breach.

Will the court always ensure that the order is proportionate to the offence and the need? I am troubled by the fact that there is nothing in the Bill to make it proportionate to the offence, and the Minister effectively confirmed that. The offence could be very minor, but a whole series of orders and requirements could be imposed. The youngster could be assessed as needing them, even though he had barely been in trouble with the law.

That raises another problem. The more a youngster feels—to use a phrase from elsewhere—cabined, cribbed, confined and hemmed in by restrictions, the more unlikely he is to comply. As the Minister said, a voluntary agreement, which has the youngster's consent, is far more likely to command confidence than something that is imposed.

Can the Minister give us a ball-park figure for the number of magistrates courts that would be able to make such orders because treatment facilities exist in their jurisdiction? The National Audit Office and the Audit Commission produced their report on drug treatment services in the middle of last year, and it revealed what all of us knew—that drug treatment is as much of a lottery as much other health treatment. The possibility of making orders is therefore entirely conditional on whether there is treatment and a vacancy in that part of the world. It is no good telling youngsters what one often tells adults—that they need treating, but that they must come back in nine months. A 14-year-old who needs treatment is an entirely different creature from a 15-year-old who returns after nine months, having moved on hugely through life experience. What information do we have about the availability of such services?

When courts consider such matters, as juvenile courts often do, how up-to-date is their information? The courts will do the best they can, and magistrates and district judges will have inquiries made. It may take a while, but they will wait for the social inquiry report and talk to a probation officer, if there is one. Often, however, the answer that comes back from those involved is, ''We may be able to get someone in here, and there may be a place there. We're not sure.'' Cannot the necessary data be computerised? I have never understood why we cannot make such data available in this day and age. Data about residential, non-residential, site-specific, voluntary, compulsory, hospital, health centre or voluntary sector facilities for young and old people could be made available day to day and updated so that we know what capacity there is. Juvenile courts spend a huge amount of time trying to find appropriate treatment, and the famous IT systems in the Lord Chancellor's Department and the Home Office could come to the rescue if they are up to the job, although they have not been so far.

Hilary Benn (Labour, Leeds Central)

May I deal first with the availability of treatment? As the hon. Gentleman will have noticed,

new subsection (4D) acknowledges his point. We dealt with the issue earlier, and it clearly makes no sense to operate the policy if appropriate treatment arrangements are not available to the courts. That is taken as read.

The schedule allows a testing requirement to be included in an action plan order or supervision order in respect of offenders aged 14 or above. That mirrors the testing provisions in section 53 of the Powers of Criminal Courts (Sentencing) Act 2000 on drug treatment and testing orders.

Moreover, that is wholly consistent with the provision in clause 10 to test those aged 14 and over in police custody; the provision in clause 145 to test them pre-sentence; and the provision in clause 239 to test them after they have been released on licence. Those clauses have already been ordered to stand part of the Bill. The reason for testing to be included in an action plan order or a supervision order is the same as for those other circumstances: it is important to be able to identify whether an offender has used illegal drugs, so that every assistance can be given to help him deal with his drug use. Although the requirement allows for testing for any drug, tests will in practice focus on identifying class A drug use, as happens at present with drug treatment and testing orders. We all understand why that should be the case.

To allow a testing requirement to be included assists the responsible officer or treatment provider to ascertain whether the offender is receiving effective treatment. The hon. Gentleman will have noticed that a testing requirement has not been included for offenders aged 10 to 13 years, because their drug use tends to relate to drugs other than class A drugs.

The treatment will be made available through local drug action teams. They are charged with developing substance misuse plans for young people as part of their focus on the most vulnerable. We have been round the houses on that argument: if we think that it is sensible to give help and support to youngsters who are in the grip of drugs, it is appropriate, at the different stages of the process, to make provision for testing in order to be able to see whether the programme is working. We should view the schedule in that modest but important light.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I understand what the Minister says. Can he deal with my question about the availability of information to the court? I understand that that information must be available in the area. However, there is a practical problem. Is there a way in which that information could be correlated? Are there plans for a streamlining of information in a way that would be readily accessible?

Hilary Benn (Labour, Leeds Central)

I will write to the hon. Gentleman.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Another promise of another missive. I shall add it to the stack that makes up the ancillary documents for this Committee. All are gratefully received.

Hilary Benn (Labour, Leeds Central)

Or the hon. Gentleman could ask a parliamentary question.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Indeed.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That this schedule be the Seventeenth schedule to the Bill.

John Mann (Labour, Bassetlaw)

Unfortunately, I was unable to comment last week on the issue of drugs testing. It is slightly unfortunate that the hon. Member for Southwark, North and Bermondsey used the orchard analogy, because there are many orchards in my constituency. I assure him that scrumping of apples is not the problem when it comes to offenders—including new offenders—with a class A drug addiction.

Young people with a heroin addiction overwhelmingly believe that coercion is required. Time after time, I speak to people who say that if they could get off heroin they would do so of their own volition. Heroin is a loser's drug. It is an addictive opiate. Indeed, those people's attitude contrasts with those on crack cocaine, whose users' general experience is that they enjoy being on it. They certainly enjoy some of the edge that goes with the addiction. Only a small number of heroin addicts are comfortable, cosy and happy to be on heroin. They seem to be the slightly older, or sometimes much older, addicts rather than the younger addicts who suddenly find themselves addicted after experimenting. The nature of coercion is essential in terms of treatment. Even a country allegedly as liberal on drugs as the Netherlands sees coercion as the model when it comes to drugs testing and treatment. The people who have been the proponents of cannabis cafés are also the greatest advocates of coercion in relation to class A drugs. I make no comment on the cannabis debate, but that observation on class A drugs is interesting and vital if we are to get on top of the problem.

My other points relate to new subsections (4C) and (4D). In line 9 in new subsection (4C), the word ''at'' is used. I referred to that word earlier in our proceedings—it says much about how we see drugs treatment. The word in my mind, which I hope the Minister will reflect on in coming days, is ''by''. The concept of having to go somewhere for drugs treatment lends itself to the drugs treatment being in the secondary, rather than the primary health care sector. Again, however, there is overwhelming evidence from France, the Netherlands and Sweden that intervention through the primary health care sector is fundamental to tackling the drugs problem.

I will not elaborate on that point, because I have today tabled another 20 written questions to the Home Office on precisely this issue, so that people can contemplate it. However, the fact that GPs are not expected or, often—including in my area—encouraged or allowed to get involved in the treatment of drug offenders is totally nonsensical. There is no evidence base anywhere to suggest that such involvement is a worse option, and there is plenty of evidence to suggest that it is far more effective.

I return to what I have crudely, and perhaps wrongly, described as the probation-led nature of drugs treatment in this country. The Home Office's perception of drugs treatment is wholly wrong. One

cannot go to some distant establishment and be treated and cured. That is not in the nature of heroin addiction. However, four key forms of treatment could be given. One is methadone maintenance, which is used in the Netherlands. That does not cure people, but stabilises them. The second form of treatment is psychotherapy, which tends to be residential. The other two forms of treatment are buprenorphine and naltrexone. There is evidence from France and Portugal about their effectiveness, but they are not offered.

New subsection (4D)(a)(i) refers to treatment only where ''arrangements . . . can be made''. Well, arrangements can be made if GPs are allowed to get involved in treatment. With the Blackpool Tower project, there was a 40 per cent. reduction in crime within six months. That was achieved with a single GP using only one of the four forms of treatment and dealing with everyone who was arrested. That pilot is working. The same principle has been applied in the Netherlands for 30 years and has worked there. Heroin addicts in the Netherlands are not involved very much in crime, whereas heroin addicts are responsible for the vast majority of crime in some of our communities.

To build into the legislation a get-out clause that gives rise to the feeling that treatment is not and cannot be available is not right. It is not more money that is needed in treatment services. The money that is there needs to be spent effectively. The Home Office needs to wake up to that.

The rest of the debate is in Hansard.